OPINION: ADA lawsuits shouldn’t be the first solution

posted in: ADA, Disabilities | 0

By William E. Brown

Among other things, the Americans with Disabilities Act, or ADA, is designed to ensure people with disabilities have access to buildings alongside everyone else. It’s an important mission that Realtors support.

To that end, when a building owner or commercial business discovers that it’s out of compliance with the ADA, the National Association of Realtors supports the notion that businesses should have the opportunity to fix the problem before a lawsuit is filed. Unfortunately, well-intentioned businesses face costly and time-consuming legal battles in an attempt to rectify ADA compliance issues, which serves as an additional hurdle to detecting and resolving ADA compliance.

Title III of the ADA is intended to ensure access to businesses for individuals with disabilities, but the law doesn’t require these individuals to provide a business with any notice prior to suing the entity for non-compliance. That sets up a troublesome scenario.

Here’s what happens: A business owner believes a property is in compliance with the ADA, but in reality the business has failed to comply with the ADA in what sometimes is a small way. This could include improper signage or even the height of a soap dispenser in a restroom. Instead of being notified of the non-compliance, allowing the business to rectify the matter, the business is hit with a lawsuit.

The business owner may be prepared to address the issue, but at this point, legal action has already been taken. Once a lawsuit is filed, there is no opportunity for property owners to quickly or easily repair the situation without a lawsuit hanging over their heads. Rather than dedicating resources to making the building ADA compliant, the owner must now spend additional time and money responding to a lawsuit. This may include injunctive relief, attorney fees and financial penalties — all against a property owner who believed the property was in compliance but was willing to rectify the issue from the beginning.

Commercial businesses can take steps to ensure they aren’t ensnared in such a legal fight. First, business owners, property managers and residential landlords should consider conducting an audit of existing properties to ensure everything is up to code. Having achieved that, it goes without saying that businesses should ensure ADA compliance on all newly constructed properties as well. It’s always better to discover and fix problems independently than wait for someone to file a lawsuit.

With that in mind, there’s an important caveat to building codes. It’s expected that commercial properties are up to code, whether it’s new construction or existing commercial properties, but it’s important to remember that local building codes don’t address all of a building’s responsibilities to comply with the ADA.

In many jurisdictions, local building codes only scratch the surface of what’s required because they may not encompass all of what is required under federal law. And if that weren’t enough, many states have laws on the books relating to accessibility requirements that may even exceed ADA requirements or local building codes.

Commercial business owners are encouraged to do the legwork and ensure their projects comply with all accessibility requirements under state and federal law, as well as with local codes and regulations.

That may sound like a lot to know, but it’s well worth staying ahead of the curve. It is important to ensure residences and businesses are accessible to everyone, first and foremost, and it also makes smart business sense.

ADA-related lawsuits were up 37 percent from 2015 to 2016, with no sign of slowing in 2017. Not every one of those is aimed at commercial buildings, but multifamily properties, retail enterprises and an array of other commercial buildings are squarely in the crosshairs. Throughout the country there are “hot-spots” such as California, Florida and Utah where lawsuits are filed with greater frequency. The reality is, of course, that a lawsuit can happen anytime, anywhere.

Realtors are strong believers that drive-by lawsuits aren’t a productive way to ensure that individuals have access to businesses, and an effort is underway to do something about it.

The ADA Education and Reform Act, H.R. 620, is a bipartisan bill pending before the U.S. House of Representatives that addresses this issue head on by adding a critical notice-and-cure provision to the ADA. If passed into law, this provision would give business owners the opportunity to rectify a violation within a reasonable period of time before they are burdened by costly litigation.

Suppose a retail business with a handicap restroom has grab bars in the appropriate place, for example, but they’ve been inadvertently installed too high or too low. Rather than immediately being slapped with a lawsuit, H.R. 620 would afford the businesses an opportunity to adjust the height of the grab bar as required by the ADA, instead of spending time and money in a court battle, and being subjected to a protracted fight and the payment of attorney fees.

In short, businesses would have an incentive to do the right thing by quickly addressing violations instead of battling complaints in court.

Even better, the bill creates an education program involving n the Department of Justice, state and local governments, and property owners to increase awareness of public accommodation and develop strategies to improve access for people with disabilities. For this reason, Realtors view this legislation not only as an opportunity for businesses to comply with the ADA, but also as a way to ensure resources are dedicated to improving accessibility, rather than being diverted to attorneys’ pockets.

Realtors are strong supporters of the ADA and are committed to providing access for individuals with disabilities. Accessibility is an issue of fairness that deserves sincere attention and commitment from the commercial real estate industry. We simply believe that businesses and property owners should have an opportunity to comply with the law before being forced to engage in a lawsuit that ultimately only benefits the attorneys involved.

NAR is hopeful that the ADA Education and Reform Act will move through the legislative process in the year ahead. We anticipate a robust debate and welcome an ongoing dialogue on how to improve accessibility across the country.

Maintaining the status quo isn’t an option. We have to do better, and H.R. 620 is a way to get there.

William E. Brown is president of the National Association of Realtors.