The Americans with Disabilities Act is a law that is designed to help people with disabilities be able to access areas of public life. The basic idea is that despite having a disability, the Act should help ensure that people can still do what they need to enjoy their life.
For example, the Act is designed to help disabled persons to be able to access businesses such as grocery stores, restaurants, restrooms, hotels or other facilities. The underlying law is a federal law designed to help disabled people to access facilities so they can live their life like those without disabilities.
Title III focuses on private businesses that are known as public accommodations. New construction or modifications must be accessible to individuals with disabilities. For existing businesses, barriers to access must be removed if readily achievable.
There are many examples of public accommodations, such as restaurants, parking lots, hotels, bars, stores, banks, health spas, gyms, and health care providers. Startup businesses also face unique legal challenges, from formation to compliance, which underscores the importance of consulting a business lawyer early.
Have you been sued for an alleged violation of the Americans with Disabilities Act (“ADA”)?
Mr. Heimlich has represented clients who have been sued for alleged violations of the ADA. Often, this process may start even before a lawsuit, with a demand letter from a lawyer claiming that the property is not in compliance with the ADA.
Often, Plaintiffs who are suing for ADA violations have visited the site only once or twice and then sue a business. For businesses facing such legal challenges, our civil litigation services offers robust defense strategies and comprehensive legal support.
Some Plaintiffs even file dozens or hundreds of cases per year for alleged violations of the ADA. The first thing you should do is contact a lawyer and also send a copy to any insurance carriers you have for your business and ask them to defend and indemnify you and send a whole copy of the lawsuit.
The insurance company will evaluate whether they have coverage for such a claim. Also, if you have had any renovations or work done recently, you will probably also want to reach out to those contractors to see if those renovations were done according to the ADA.
If you need help ensuring ADA compliance or addressing any related legal issues, consult a seasoned San Jose business lawyer to guide you through the process.
How does a business determine whether there are ADA violations?
The short answer is that the ADA requirements for a business are complicated and require many different things. They can regulate the types of restrooms, sloping of floors, or parking lots, the number of handicap spots, etc.
Figuring out how they apply to a case is generally resolved to specialists who are certified in the field to provide a report to a business to detail all the ADA issues. That type of specialist is called a Certified Access Specialist “CASp”. A Certified Access Specialist “CASp” will conduct a site visit of the business to determine what modifications or changes are needed for a business.
What are the monetary expenses in dealing with an ADA claim?
First, there is the cost of retaining an attorney to defend the business. The business (unless it has applicable insurance) will probably have to pay this and is unlikely to get this money back from the Plaintiff. In addition to the hourly costs of your attorney, there are filing fees with courts, process serving costs and other litigation related costs.
Second, there are the costs to hire a Certified Access Specialist “CASp” to do a site inspection and possibly even paying to reimburse the ADA plaintiff to also conduct their own site inspection. There may also be a follow-up inspection after any modifications have been completed to ensure compliance.
Third, there is the cost of making any required modifications to the premises, either doing the work yourself or hiring a contractor to make the appropriate changes to the property to comply with the Certified Access Specialist “CASp” inspector report.
Fourth, there is the possibility (probably likelihood in most cases I’ve handled) that a Plaintiff can get their attorney’s fees paid for bringing the ADA case. Under 42 USC Section 12205, a Court may award reasonable attorney’s fees, including litigation expenses and costs.
Please note that a Court has pretty wide latitude on what is “reasonable,” and it is not uncommon for the Court to approve hourly rates of $400 or more and many hours, so this could be many thousands of dollars depending on how long the case went on and how much work was done. Under California Civil Code Section 55, there is also a basis under California law to seek reasonable attorney’s fees. In fact, in California, the Court says the attorney’s fees shall be rewarded, which is mandatory.
Fifth, and finally is the statutory damages that a Defendant must pay for the harm caused to the Plaintiff under California law. Under California Civil Code Section 52, the discrimination against the disabled person results in (in addition to any actual damages) an amount up to a maximum of 3 times the actual damages but a minimum of $4,000 for each and every offense. So, if the disabled person visits the location twice, there may be $8,000 in damages. This provision also allows attorney’s fees.
So, what is a business to do when notified of a potential ADA issue or is served with an ADA lawsuit?
Contact an attorney who, like Nick Heimlich, has handled an ADA case before and understands the risks for you. Also, working with that attorney to determine corrections and modifications is key. Finally, if a tenant or landlord get served, there can be additional issues as to who is responsible, depending on the lease and other items.
