Settlement Assures Accessibility at New York’s Largest Shopping Malls Under the ADA

The New York State Attorney General’s Office has announced that they have reached an agreement with the largest privately owned shopping center owner and developer in the Northeast, to ensure that individuals with disabilities are provided equal access to the indoor and outdoor common areas at its twelve shopping malls in New York. Attorney General Eric T. Schneiderman said that the AG’s investigation of Pyramid Management Group LLC, was part of an ongoing initiative to ensure accessibility at shopping malls and shopping centers across New York State. Pyramid operates twelve large shopping malls across New York State, including Destiny USA in Syracuse, New York, the largest shopping mall in New York.

Pyramid Property

Many New Yorkers with disabilities find it difficult to access shopping malls because of architectural barriers,” said Attorney General Schneiderman. “My office has made it a priority to remove these barriers, and to help ensure that all New Yorkers have the access they need to live full and independent lives.”

The investigation into Pyramid arose from a complaint filed with the Attorney General about accessibility barriers at Champlain Centre, a large indoor shopping mall managed by Pyramid in Plattsburgh, New York. The Attorney General’s Civil Rights Bureau’s investigation included assessments of the outdoor areas of several Pyramid-managed shopping malls across the state, and a comprehensive expert survey of Walden Galleria, a Pyramid-managed mall in Cheektowaga, New York. These surveys revealed several persistent accessibility barriers across Pyramid’s portfolio, including improperly sized parking spaces, steep slopes and cross slopes at curb ramps, inadequate signage, moveable objects in the path of travel, and other issues in the public hallways and restrooms at various malls.

walden-galleria-mall

Under the agreement, Pyramid has agreed to:

• Retain an ADA consultant who will report to the Attorney General’s Office on compliance with the agreement by Pyramid for three years, and who will survey the covered shopping malls to determine necessary remediations;
• Take remedial action to ensure that the common areas of each shopping mall comply with the accessibility standards;
• Develop new policies prohibiting discrimination on the basis of disability and ensuring future compliance with ADA requirements;
• Conduct ADA training for relevant employees, including property managers and maintenance staff;
• Submit any plans for new construction or substantial alterations at its shopping malls for review by the ADA consultant; and
• Post accessibility maps for each shopping mall on its website, as well as instructions on how to obtain complimentary wheelchairs, and any other services available to customers with ambulatory disabilities.
• Pyramid must also amend its standard retail lease to require tenants to affirmatively certify that its plans comply with accessibility requirements, and take steps to promote ADA compliance by anchor tenants of its shopping malls. Finally, Pyramid has agreed to resolve the investigation by paying $160,000 to New York State.

The agreement announced today will apply to the following mall locations across New York State:

• Walden Galleria (Cheektowaga, NY)
• Champlain Centre (Plattsburgh, NY)
• The Shops at West Seneca (West Seneca, NY)
• Destiny USA (Syracuse, NY)
• Sangertown Square (New Hartford, NY)
• Aviation Mall (Queensbury, NY)
• Crossgates Mall (Albany, NY)
• Crossgates Commons (Albany, NY)
• Poughkeepsie Galleria (Poughkeepsie, NY)
• Palisades Center (West Nyack, NY)
• Galleria at Crystal Run (Middletown, NY)
• Salmon Run Mall (Watertown, NY)

In the spring of 2014, the Attorney General entered into agreements with Vornado Realty Corporation and Kimco Realty Corp. Those agreements require over fifty shopping centers to comply with accessibility requirements. Vornado, a real estate investment fund which owns and manages more than 100 million square feet of commercial real estate in the U.S., owns 20 shopping centers in New York that are subject to the agreement. In that case, the Civil Rights Bureau sent investigators to examine the parking lots and garages at the Rego Center and a second Vornado-owned shopping center, at 1750-1780 Gun Hill Road in the Bronx. The bureau also retained an expert to survey the Rego Center garage. Among concerns identified by the expert was a ramp that, by law, was too steep, missing handrails, and an accessible route that ended at an abrupt step down into the parking area.

Under that agreement, Vornado will identify and remediate accessibility barriers in the parking structures at the 20 New York shopping centers. Five of the centers are in NYC and seven are on Long Island. Others are located in Albany, Broome, Dutchess, Erie, Monroe, Onondaga and Westchester counties. In addition, at the Flushing Shopping Center in Flushing, Queens, Vornado will seek to secure cooperation from its subtenant to address any barriers that may exist at that site. The settlement also required Vornado to retain an ADA expert to survey the parking lots and garages at the locations, produce reports identifying where barriers exist, and take remedial action to bring each lot or garage into compliance with New York State’s human rights laws and federal accessibility standards within one year. In addition, the company must also adopt policies, procedures and training for employees about the requirements of the Americans with Disabilities Act to ensure ongoing compliance with accessibility requirements. It will also ensure that any new parking structure construction complies with state and federal accessibility laws and standards. Vornado will pay $70,000 in penalties and fees. More information about them can be found here and here.

In 2012, the office secured agreements with Century 21, JC Penney, Loehmann’s and Petland Discounts. Those agreements require over 100 stores to comply with accessibility requirements. More information about them can be found here.

ADA FAA

Accessology, a national consulting company on accessibility issues works with private as well as public entities to assist them in becoming compliant under the ADA. They have been warning agencies that in addition to an increase of private litigation, reviews conducted by the Department of Justice (DOJ) are also increasing.

Kristi Avalos, president of Accessology points out that the initial goal of the ADA was for 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.

Kristi Avalos Picture

According to Avalos, sympathy related to cost of compliance under the ADA is dissipating because the law is now 25 years old and compliance should have already occurred. She points out that after 25 years, the disability community along with the DOJ are growing weary of noncompliance, “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. 2015 was the 25th Anniversary and we saw landmark litigation. This can only be ignored for so long.”

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.

“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.

NOTE: If you would like to speak with Kristi Avalos and her team of experts at Accessology about your compliance under the ADA, you can contact them by visiting their website here http://www.accessology.com .

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