Public entities beware, ADA compliance is in your best interest

Lawsuits filed on behalf of citizens who claim a business is in violation of the Americans with Disabilities Act (ADA) is just one form of ADA litigation making its way through the courts. On July 26, 1990, President George H.W. Bush signed the Americans with Disabilities Act into law, and today a concern is rising among public entities that years of non-compliance will trigger expensive litigation filed by the Department of Justice (DOJ).

The rise in what some call nuisance or serial ADA lawsuits, has reached a crescendo in states such as Florida as citizens identify areas of noncompliance and seek remedies in the courts. More than one out of every five federal disabled-access lawsuits filed in the United States in 2013 originated in the Southern District of Florida, outpacing the national average. Earlier this year, 24 hotels in Northeast Florida were hit with lawsuits, filed by a single plaintiff, alleging discrimination under the ADA, including the Fairfield Inn and Suites Jacksonville Airport and Crowne Plaza Jacksonville Airport.  A February 2015 search of the federal court docket showed the same plaintiff had filed 606 lawsuits since 2013.

However, in one Florida County, leaders were proactive in addressing the needs of their disabled citizens, when in 2013, the Leon County Board of Commissioners enacted a Refueling Assistance for Persons with Disabilities ordinance to ensure that persons with disabilities are provided equal access when refueling their vehicles.

Under the ADA, gas stations including those who use self-service, are required to provide equal access for their customers with disabilities. But, according to disability rights activist, JR Harding, there are gaps in the ADA regulation which Leon County addressed.

Image is from of a fuel call system in Iowa
Image is from of a fuel call system in Iowa

Harding, is now working to get the laws changed throughout the state, and described his enthusiasm of Leon County’s ordinance shorty after it passed, writing, “for the first time in my 30 years as a quadriplegic…I was able to get gas independently and enjoy a high level of service. I did this without honking the horn, getting out the car…by rolling down my window and hitting an oversized ADA compliant button at 48” off of the ground. When the bell rang inside, the service attendant immediately knew the purpose of the ring and came out with enthusiasm ready to serve me…”

While proactive measures to assist the disabled and comply with the ADA are in the best interest of public and private entities, non-compliance can prove costly, prompting lawsuits, DOJ reviews and withholding of federal funds.

Kristi Avalos

Until this year, the highest private litigation award was $12 million against K-Mart,” notes Kristi Avalos, an accessibility expert. The president and CEO of Accessology added that a class action lawsuit filed on behalf of disabled citizens in the City of Los Angeles and settled earlier this year is expected to cost billions.

In the lawsuit, plaintiffs argued that the City’s failure to maintain the sidewalks impaired them from their rights under the ADA to freely move around. The landmark legal settlement called for a $1.4 billion investment in the city’s sidewalks and other walkways over the next 30 fiscal years to install curb ramps, fix sidewalks that are broken and torn up by tree roots, install accessible sidewalks where they do not exist, and remove many other barriers. In addition to the cost of the repairs, the city agreed to pay $15 million in attorney’s fees and costs, reports the LA Times.

In July of 2015, $1.5 million dollars was paid to compensate 47 individuals with disabilities who experienced discrimination at QuikTrip gas stations and convenience stores across the country.  The consent decree reached under Title I of the ADA, required QuikTrip to make all of its facilities accessible, adopt accessibility policies and pay a $55,000 civil penalty to the United States.

But the rise in costly private litigation is only part of the tsunami of lawsuits headed toward entities who are not ADA compliant.

DOJ

Dubbed Project Civil Access (PCA) the US Department of Justice has beefed up their efforts to ensure that, in addition to the private sector, states, counties, cities, towns, and villages also comply with the ADA. To enforce the 25-year-old regulation, the DOJ is conducting regular reviews across the country leaving no municipality without risk.

According to Avalos, “Compliance review sites are chosen based upon the desire of the DOJ to visit every state, the population of the site, and, in some cases, its proximity to a university or tourist attraction.”

The majority of the compliance reviews occurred in small cities and towns because they represent the most common form of local government,” she stated.

A search of the PCA website reveals that the Department of Justice has increased its litigation over the past few years substantially against Title II entities. Settlements reached by the DOJ with the various entities have increased 50% since 2012 and 36% since 2013.

By July of 2015, the DOJ had reached over 217 Settlement Agreements since the PCA initiative began in 1991. A majority of the compliance reviews occurred in small cities and towns.  In 2014, although no settlement cases were listed by the PCA, in September of 2015, 14 cases involving the ADA were already settled with the Department of Justice.

Today, city and county leaders, unaware that the ADA addresses more than just access to restrooms and doorway clearances, could be exposing their municipality to a Department of Justice review. According to Avalos, spending millions of dollars without achieving compliance adds to the risk of DOJ involvement.

A look at a number of settlements from 2015 reveal that the DOJ not only reviewed old and new construction as well as alterations but all programs, services and activities in a vast array of areas including:

  • Polling places housed in churches, city hall, community buildings, Veterans and American Legions buildings including parking areas.
  • Parks, arenas, aquatic centers, stadiums, pools, sports facilities including fields and golf courses, and coliseums including pavilions, concessions and parking areas.
  • Convention centers, memorials and fairgrounds.
  • Animal resource centers.
  • Community centers, senior centers, nursing homes and libraries.
  • Schools as shelters, polling places and general facilities.
  • County and city buildings such as courthouses, annexes, social services, tax admin, technology services, City Hall, highway services, town hall, medical examiner’s office, and the Justice of the Peace.
  • Detention and justice centers and corrections and criminal justice buildings, jails, Sherriff’s Offices and the Constable.
  • Health and Environmental Departments
  • Fire Stations.
  • Meth Treatment/Admin centers.
  • Water Commission Buildings and Solid Waste stations.
  • Emergency Management and Disaster Policies for evacuating the disabled and locations for shelters including parking, routes, sidewalk maintenance for evacuations for the disabled, and procedures.
  • Law enforcement communication policies and procedures for the deaf and hard of hearing.
  • Highway fleet maintenance.
  • Sidewalk maintenance policies
  • And more…

Examples of the types of litigation filed by the DOJ range from access to buildings, online websites and technology, public transportation, as well as employee related issues among many other areas. The litigation has involved schools, universities, and private as well as public entities.

In our next post we will detail other areas of required compliance under the ADA as well as examples of litigation settled by the DOJ.

(NOTE: If you would like assistance reviewing your compliance under the ADA, or need consultation on accessibility related issues, contact Accessology at 972-434-0068 or visit the website here http://accessology.com/ )

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