Nearly 40 percent of all ADA accessibility lawsuits in the United States are filed in the State of California. Typically, the alleged violations involve lack of disabled parking and inaccessible restrooms at businesses such as restaurants, motels, retail stores, office and apartment buildings.
Most of this is due to the conflicting access standards under California and federal laws, lack of continuing education for building inspectors and architects, and inconsistent interpretations of state law have made compliance with disability-access standards in California extremely difficult. Under California law, violators of these standards may be found liable for up to three times the amount of actual damages, but not less than $4,000, plus attorney’s fees and costs, even if the violation is seemingly trivial.
I spend a considerable amount of my time with my clients and I find that I answer the same ADA Compliance questions all the time. Each property is uniquely different however, this article will quickly address the top 10 questions.
Q: What is the most common ADA violation?
The most common violation is not having an ADA Van Accessible parking stall.
Q: Are older buildings exempt from current accessibility standards?
A common misunderstanding with the ADA laws is that older buildings are “grandfathered in” and therefore don’t have to meet current standards. There is no grandfather clause in the ADA and federal accessibility laws apply to all buildings regardless of age.
Q: Can anyone sue for non-compliant accessibility?
In order for a person to be eligible to receive damages in a construction-related accessibility claim that person either had to personally encounter a violation on a particular occasion or personally was kept from accessing a business on a particular occasion.
Q: If I am sued for ADA compliance issues in my parking lot and have paid the plaintiff, do I still have to perform the work to become compliant?
Yes, most lawsuits are settled with the understanding that ADA compliance will be met with 30-180 days pending the amount of violations.
Q: What is the average cost of one of these lawsuits?
The average ADA parking lawsuit ranges from $20,000 to $25,000 and negotiated around $15,000 to $20,000.
Q: Should I be concerned about ADA compliance and why?
Absolutely, California has the most stringent ADA compliance in the U.S. by the Division of the State Architect (DSA) and the Federal government therefore, this allows for the most ADA lawsuits in the US. You are far better off being proactive and becoming COMPLETLEY ADA compliant prior to any lawsuit thus eliminating the cost of the lawsuit. If you are sued you still have to negotiate the lawsuit and pay for the construction costs.
Q: Who should I contact to perform ADA compliance design/work, architect, engineer or a contractor?
Your best source will be someone who is CASp certified by the State. Most architects and engineers are not educated in the specific details of ADA compliance. The CASp individual can provide a detailed report that states what the current violations are for around $1,500.
Q: Once I have a CASp report completed what is the next step?
Herein lies the difficult part, finding an expert in ADA and a contractor that can fully comprehend the CASp report and has a full understanding of the CBC, Federal, DSA and Local Jurisdiction. This is the most common and costly mistake made by property owners is allowing incompetent contractor lead them to believe that they do not have to become completely compliant and that you do not need certain items to keep costs down. Often you can hire the CASp individual to oversee or act as an inspector to observe the contractor.
Q: I was recently served with the typical lawsuit of not having a Van Accessible parking stall. I was told by a contractor that all I needed was paint striping of the parking stall. Am I protected?
This minor correction may have been enough to satisfy this lawsuit since most are interested in just the settlement however, the door is now open for other potential lawsuits unless fully compliant. It is always suggested to become completely compliant.
Q: What other items remain after simply paint striping the parking stall?
The following are standard items that are commonly missed:
Proper signage at correct height at parking stall and entrances.
Asphalt slope in ADA areas to have a max cross slope of 2% and free of cracks with elevation changes and gaps.
Proper striping with DSA approved logos, contrasting colors white and blue cross hatching.
DSA approved truncated domes @ areas entering or adjoining vehicular traffic.
Path of travel from city sidewalk to entrance doors with max cross slope of 2% max and a rise of 5% max.
The owner of the first picture below paid over $150,000.00 for ADA upgrades and sadly none of this is compliant. You cannot construct a ramp within the cross hatched area. The blue diagonal stripes must be contrasting preferably in white. The stripes may not continue through “NO PARKING”. The owner assumes he is protected however, the ADA work has not been constructed properly.
The ADA parking stall layout pictured below is correct. It has the proper curb ramp with DSA approved truncated domes. The striping has the white diagonal contrasting stripe that does not continue through the 12” NO PARKING”. The asphalt has been overlayed to comply with 2% cross slope in any direction and the signage is correct.