Accessology, a Texas accessibility consultant has responded to an investigation published by an Austin media outlet which has uncovered nearly 120 lawsuits against Austin businesses accusing them of not being compliant under the federal Americans with Disabilities Act (ADA).
KXAN, who conducted the investigation spoke to Joe Berra, an attorney with the Texas Civil Rights Project who files ADA lawsuits on behalf of disabled plaintiffs:
“The ADA is a civil rights statute. The way the ADA works is to create a society where there is no bar to accessibility and people have equal access and opportunities.”
Now 25 years removed from the ADA law passage, nearly all construction, even that predating the law, should be in compliance with ADA standards, Berra said. When a disabled person encounters a business that is not ADA compliant, “they feel like it is a sign that says ‘you are not welcome,’” Berra said. Many business owners don’t fully understand ADA compliance, he added. In some cases, business owners may believe that passing a city code inspection means the business is ADA compliant.
According to KXAN, the majority of lawsuits have been filed by one man in a wheelchair and his attorneys. The business owners told KXAN that they believed the lawsuit was filed strictly for financial gain, something the Americans with Disabilities Act (ADA) was never meant to be used for.
In response, Kristi Avalos, president and CEO of Accessology, an accessibility consulting business located in Texas, agrees that profit was never the intention of the ADA. Accessology works with businesses to ensure they understand their responsibilities under the ADA and they help public as well as private entities develop plans to remove their barriers.
“I want to make sure I’m clear that I do NOT endorse those who are trying to get personal gain through the ADA,” she told KXAN by e-mail.
“The “pay me or else” people highlighted in your article should not get away with what they’re doing, and they give the ADA a bad name. It’s a good law, that makes good progress for a good group of people. People should not get financial gain from it. As a matter of fact, ADA has no punitive or compensatory damages so damages would not be awarded by the courts.”
But, Avalos went on to say that business owners have had the same responsibility under the ADA since the law went into effect in 1990, noting that “many have ignored it for 25 years.” Avalos said that businesses often believe the myth that they are ‘grandfathered’ because their business was opened prior to the ADA’s effective date. “This, however, is untrue,” she said, “there are NO “Grandfather” clause under the ADA and a business owner is responsible for removing barriers in 5 main area.”
Avalos detailed those five areas as follows:
Accessible Parking Space
1. If parking is provided, they must have accessible parking. The number of spaces they are required to have is based on the total number of parking spaces offered. There is a table in the standards called “Table 2” that I’ve copied below. Each accessible space needs to have an access aisle that leads to an accessible entrance. Part of this priority (defined as priority 1 by the Department of Justice) is to ensure there is also a compliant path of travel that leads to a compliant entrance. There are many elements to an accessible parking space and often an owner either sticks up a sign or paints the wheelchair symbol on a non-compliant existing space. Neither paint nor signage make a regular parking space compliant.
Access to Goods and Services
2. Once a person with a disability gets into the accessible entrance, can they access the goods and services offered by the business. To do this all of the following needs to be addressed:
- Is the interior path of travel compliant?
- No steps or does it have vertical access to other levels?
- Are there protruding objects?
- Do the reception/welcome desks have a lowered section?
- Is there accessible seating, aisles, hallways, etc.?
Are Restrooms Compliant?
3. That means, do they meet the access standards as defined? Often, a business owner will install a grab bar in a non-compliant stall and think they are done.
Accessible Drinking Fountains:
4. If drinking fountains are provided, is there at least one for people in wheelchairs or people with short stature (spout no higher than 36”) and one for people who have trouble bending or stooping (spout between 38” and 43”).
5. If public telephones are provided, is there at least one that is lowered so the highest operable part (usually the coin slot) is no higher than 48”? If there are three or more public phones, is there also a telecommunication device for the deaf?
Avalos said that goal of the ADA was for these modifications to be taken care of over time, “If construction occurs, 20% of the cost of each construction project is required to go towards barrier removal. However, even if no construction activity has occurred these 5 elements are required to be brought into compliance,” she said.
So, why do we have such an increase in access related litigation?
Because it’s been 25 years, Avalos said, “The disability community celebrated the 10th Anniversary of the signing of the ADA by filing about 600 cases nationwide. The 20th Anniversary almost 1,400 cases were filed. This year is the 25th Anniversary and we expect landmark litigation. This can only be ignored for so long.”
In addition to expensive private litigation, Avalos points out that all of the Federal Agencies are now prepared to withhold Federal Funding and grants for Title II entities (public entities such as municipalities, school districts and universities) for not having their ADA required “Transition Plans” in place. For private companies, Avalos said that sympathy related to cost is dissipating because the law is now 25 years old and compliance should have already occurred.
Avalos said that not only has the law provided plenty of time for business owners to become compliant but that the IRS Tax Code 190 has allowed a building owner tax credits (up to $15,000 per building, per year) for barrier removal. In addition, she said there are several grants available for barrier removal. “I’ve also seen communities pull together for their favorite ‘hot spot’ where the local Lowe’s or Home Depot donates the materials and local churches donate labor for compliance,” she said.
“After 25 years there are few excuses for non-compliance. Even if the cost of compliance is $100,000 today, it could have been achieved by now at a cost of only $4,000 per year for the past 25 years. Its’ time. This isn’t going away and with our growing aging population, there’s a whole market out there just waiting to be invited in. Removing barrier IS that invitation,” Avalos concluded.
A portion of Avalos’ response was published in an article from KXAN which can be read here.
( NOTE: If you have concerns about accessibility for your business or municipality Accessology is available to answer your questions. As a national consultant in the area of accessibility, our team has expert knowledge on the Americans with Disabilities Act (ADA) and its Accessibility Guidelines, Fair Housing, 504, Texas Accessibility Standards, as well as other state and federal accessibility standards. From Fortune 500 companies to small town building owners, municipalities, schools, Universities, Departments of Transportation and other public entities as well as private businesses, we are trusted as a leader in accessibility consulting. Visit the Accessology website here http://accessology.com/ )