Colorado Real Estate Journal - April 20, 2016
Title III of the Americans with Disabilities Act provides that no qualified individual with a disability shall be discriminated against in the full and equal enjoyment of goods, services, facilities, privileges, advantages or accommodations by any person who owns, leases, leases to or operates a place of public accommodation. These provisions apply to owners and property managers alike, and in the context of bricks and mortar (barriers), internet interface (website functionality), and policy and procedures. A “place of public accommodation” is a privately owned place that accommodates, or is open to, members of the public in a manner which affects commerce. There are 12 categories of places of public accommodation, and the Department of Justice recently took the position that websites and applications are places of public accommodation. Title III requires a public accommodation to make “reasonable modifications in policies, practices, or procedures” and take other special steps to ensure access is available to persons with disabilities. Public accommodations must remove physical barriers where it is easily accomplished and are required to ensure that new and altered facilities are designed and constructed in compliance with the ADA standards. There are two sets of the ADA standards: 1991 Standards – ADA Standards for Accessible Design; and 2010 Standards – 2010 ADA Standards for Accessible Design. The 1991 Standards were in effect for new construction and alterations until March 14, 2012. The 2010 Standards were published Sept. 15, 2010, and became effective March 15, 2012. Under the 2010 Standards, the U.S. Access Board writes the initial recommendations that are then given to the DOJ for approval after public comment. The Access Board is a federal agency intended to promote equality for people with disabilities by developing accessibility guidelines and standards for the “built environment, transportation, communication, medical diagnostic equipment, and information technology.” Title III initially applied to facilities designed and constructed for occupancy after Jan. 26, 1993. Public accommodations then had to comply with the 1991 Standards. The 2010 Standards became mandatory after March 15, 2012. New construction is construction for which a building permit application or start of physical construction occurs on or after March 15, 2012. There is a “safe harbor” for construction that commenced between Sept. 15, 2010, and March 15, 2012. The safe harbor applies only if the construction is compliant with the 1991 Standards and was not altered before March 15, 2012. It is an element-by-element test, and if construction is not compliant with the 1991 Standards, then the 2010 Standards will be applied. All alterations affecting the usability of the facility must be made in an accessible manner to the maximum extent feasible. If alterations are made to a primary function area, an accessible path of travel to the altered area must be provided. Restrooms, telephones and drinking fountains serving that area must be made accessible as well. Accessibility alterations to path of travel are required up to 20 percent of the cost of the original alteration. For existing structures, the public accommodation must implement “readily achievable barrier removal.” Readily achievable is defined as “easily accomplishable and able to be carried out without much difficulty or expense.” These are items such as accessible parking, curb cuts, ramps, widening doors, grab bars, lowering telephones and dispensers, rearranging furniture and equipment. DOJ’s 2010 Advance Notice of Proposed Rulemaking made it clear that DOJ believes the ADA also applies to those offering goods and services to the public through the internet. However, DOJ announced that rulemaking on web accessibility will be delayed until 2018. Therefore, owners and operators continue to have no guidance for internet compliance, even as governments begin enforcement and individuals file lawsuits. DOJ stated that a public accommodation must make videos on its website accessible to qualified persons with a disability in the general public, not only their consumers. However, this contradicts DOJ’s earlier position that a public accommodation could comply by providing access through alternative means such toll-free numbers and call centers. Against this backdrop, what is a “drive-by” lawsuit? These are cases based on very technical violations of the strict application of the Title III standards. Often the plaintiff, or their lawyer, will simply walk through a property and list any potential violations observed. Most are not driven by true accessibility issues but, instead, by the attorney’s hope of recovering fees and expert witness fees. In 2015, federal lawsuits under the ADA increased from 4,436 in 2014 to 4,789, an 8 percent increase. The leading states were California, Florida, New York, Texas and Arizona. These states accounted for 80 percent of the suits filed. Texas saw a 204 percent increase in filings. In many cases, there are no damages available unless the case can be coupled with a state statute that provides for such an award. Lack of qualified professional support, coupled with misunderstanding of the law and applicable standards – such as application of new construction/alteration standards to pre-existing facilities – and misunderstanding of “readily achievable” or “acceptable tolerance levels,” often leads the target to settle these cases quickly, without adequate investigation, and for amounts above their value and beyond what is required. This is understandable because the target is driven by fear and perceived cost-benefit analysis, and wants to avoid negative press by getting the matter behind them. However, a target can deflect such suits by being proactive, formulating a defense strategy with competent professional support, managing public perception and presenting a solid, aggressive response. In hopes of addressing this issue, HR 3765 is currently pending in the U.S. House of Representatives. This bill would amend the ADA to add a provision requiring that any person must provide written notice, specific enough to allow the owner or operator to identify the barrier, before filing a civil action based on removal of the barrier. This is a step in the right direction, but public accommodations still have little guidance and remain exposed and vulnerable to baseless suits. Until the DOJ regulations are issued or more test cases are published, public accommodations will be best served by taking advantage of available resources to determine their obligations, auditing their existing facilities and websites for compliance, obtaining competent support with compliance questions, being attentive to formal and informal complaints alike, and being prepared to respond promptly to any threat of litigation with an informed defense.