Legal Issues

Few claims catch a small business or property owner more by surprise than an ADA (Americans With Disabilities Act) lawsuit. Just about any other type of claim registers higher in the collective business consciousness than a suit alleging that reasonable access was denied to a disabled person. That may change thanks to thousands of expensive lawsuits filed against big businesses and owners over the years. But big lawsuits against small shop owners are not a practical or fair way of teaching small businesses to start looking at their doorway and bathroom access routes if they want to avoid ADA penalties.

An ADA lawsuit suit is designed to shock and awe. The law allows a disabled person to sue for statutory damages that range from $1,000 to $4,000 for each instance access was denied because of a disability--as well as mandatory attorney’s fees for the lawyer who represents him. And then there are the punitive damages. An ADA lawsuit should be a bright flashing hazard light to any owner wary of a claim that could cost him thousands and often tens of thousands of dollars, but unfortunately it is not.

While chain store businesses and large property owner are frequently in routine contact with architects and lawyers who remind them about the ADA and its reasonable access requirements for the disabled, small neighborhood business or property owners are usually the last to know that their properties can make them targets of an ADA lawsuit. A neighborhood business owner with a small storefront typically tends to stay out of lawyers’ offices as much as he can, and an ADA lawsuit is rarely on his legal radar screen.

By the time an ADA lawsuit hits, it’s too late for the defendant owner to avoid the penalties of denying reasonable access to a disabled person. But it’s not too late to prevent other owners from getting sued by educating them about disabled access requirements so they can avoid future ADA litigation and its costs. But sensitivity to access barriers is not intuitive to those who have never sat in a wheelchair and have little inkling of what actually impairs wheelchair access, how to fix it or what it costs. So the question then becomes: How does one educate the small business owner about ADA compliance?

The policy behind the ADA law with its mandatory penalties and attorney’s fees awards is to educate the business community and make it sensitive to access barriers for the disabled. The owner who gets sued for ADA violations becomes an expensive model to other owners who will then presumably review their own business practices once they hear of their neighbor’s hard knock ADA lesson. By making every disabled person a private attorney general who is empowered to sue and make businesses remove access barriers where reasonably possible, the cost of enforcing the ADA laws is eliminated. Put another way, the ADA laws doesn’t need inspectors and administrative hearings to compel its compliance, all that’s needed is a filing fee and a disabled plaintiff. But while educating the public with private lawsuits costs government less, private suits are only driving up the cost of doing business for owners who think they are obeying the law when, in fact, they are not.

Much more could be done, at very minor cost, particularly at the local level, to educate the business public about ADA laws so that owners don’t find themselves surprised by ADA lawsuits. Here’s one suggestion: Local government agencies that routinely check, inspect and tax small businesses could easily include in their citations, tax notices, applications or licenses some kind of caveat about the ADA and its compliance. Building inspectors, fire inspectors and health inspectors regularly tour a city’s business establishments, issuing notices and citations as part of their routine tasks, but these inspectors never mention any need to comply with ADA requirements. The stated reason by some local officials for not monitoring ADA compliance is that the ADA is a federal law and outside their jurisdiction. Even if this excuse were true, it should not prevent a local government from printing on city or county notices something like the following:

NOTICE: NO LICENSE OR PERMIT ISSUED BY THE CITY AND COUNTY OF SAN FRANCISCO EXEMPTS THE RECEIVER FROM COMPLIANCE WITH THE AMERICANS WITH DISABILTY ACT (ADA). YOU SHOULD CONTACT A PERSON QUALIFIED TO ADVISE ON ADA COMPLIANCE. FAILURE TO COMPLY WITH THE ADA MAY RESULT IN PENALTIES OF $4,000 PER VIOLATION AND STATUTORY ATTORNEY’S FEES.

Such a notice, printed and distributed on all local government documents issued to grant approval for business or property use or operation would be a cheap and effective way of educating the business public about ADA compliance. Such a notice would also be a lot fairer notice than an arbitrary lawsuit against a small shop owner who is just as unsuspecting as his neighbors about ADA compliance and its penalties.

The information provided here is only general in nature and may not be relied upon as legal advice. You should contact an attorney qualified in this area about your own specific circumstances if you have any questions or seek any advice regarding the statements made here in this article