The epidemic of ADA lawsuits against small businesses has just recently hit Second Street in Belmont Shore and Naples. Within the last 30 days there have been upwards of 25 lawsuits filed against small business owners in Federal Court.
Typically, these lawsuits are settled between $10,000-$20,000 with the assurance that the corrections also be made by the owner within 90-180 days. It is best to be proactive and obtain a CASp report and make the corrections prior to a lawsuit. Otherwise, you could pay $20,000 in a settlement and then an additional $20,000 to agree to make the corrections.
Most business owners believe that these lawsuits are part of a scam and that the disabled person is fabricating their alleged encounter at their business. The truth is that the Americans with Disabilities Act [ADA] was put into law in 1990 and compliance is the law. However, many businesses owners and property owners have no idea how to become complaint.
The issue with these lawsuits is not within the alleged encounter but with the actual settlement. The plaintiff and their attorney file the lawsuit according to federal and California state law which, currently they are legally entitled to do so. The manipulation is the actual cost of the settlement. The plaintiff and their legal counsel set a settlement threshold amount that is just below what they believe the business would have to pay for their legal counsel to defend their position in court. To provide a defense typically would cost the business owner upwards of $20,000 with the possibility of having to pay for the plaintiff’s attorney as well. This leaves the business owner with one economical choice — to settle.
The second part of the scam is in the allegations of the lawsuit. Typically, the plaintiff will state only a few allegations since they are simply after a quick settlement. The standard complaint usually alleges there is not a van parking stall, a path of travel to the entry or the restrooms were not accessible. Because there are only a few allegations noted in the lawsuit, the business owner only focuses on these allegations.
This is a common mistake and a very costly one that the plaintiff wants the business owner to make. Now the second plaintiff can file another lawsuit for the service counter, seating, tables, door levers, etc. The lawsuits can continue on and on until full ADA compliance has been met. This is why business owners need a complete ADA team to bring the property into full ADA compliance correctly and swiftly to reduce costs.
When served with an ADA lawsuit, do not simply concentrate on the few alleged items’ become ADA compliant correctly the first time with a complete accessible route according to Federal and California law. This would start with a CASp report to identify all corrections.
Most small business owners are operating under the assumption they are operating within the law. Most owners begin with their architect. The architect may have limited knowledge of ADA compliance and provides formal plans to the city. The city, again with limited knowledge, approves the plans, the contractor, with limited knowledge, provides construction and the inspector signs off on the final inspection. This process leaves the business owner with a good feeling that they have performed all correctly. In most cases, this is not true.
Because of this confusion the Division of the State Architect has put into place CASp inspectors whose sole purpose is to inspect for ADA compliance and provide a detailed CASp report noting all corrections necessary. This is the business owner’s most valuable source of information.
There are two types of scenarios — the business owner who is on the list of a potential lawsuit and the owner who has been sued. If the business owner has not been sued, then it is critical to obtain a CASp report to identify any corrections. If a business owner has been sued in Federal Court, you have 21 days to respond. You need an ADA attorney, CASp report with and ADA Designer/Contractor immediately. All of these principals work in concert and convey information back and forth to provide the quickest and most economical settlement.
All business owners should be proactive and at least obtain a CASp report. If you have been caught up an ADA lawsuit, work with a qualified ADA team. Apartment buildings that are 15 units or more and trigger an onsite manager and leasing office are current targets for ADA lawsuits as well.
Anthony Guichard is President and CEO of ACR Design & Build, which specializes in ADA compliance.