Tell me about the Americans with Disability Act

[ivylass]

Say a business is grandfathered in. They don’t have to have a wheelchair ramp or wheelchair accessible bathrooms. A customer in a wheelchair is SOL.

If they start to remodel and decide to put in a ramp, do they then have to go whole hog and make the entire business handicap accessible?

Also, say a restaurant has an elevator to the dining area that’s been out of service for years. They can accommodate wheelchair bound diners in the bar area. But the upstairs dining area has the better view and atmosphere. Are they in bounds of the ADA? Or because the food costs the same upstairs or downstairs, they’re fine?

I ask this because Ivylad and I spent a weekend away, and I counted. Of the ten businesses on the main street, (it’s a very tiny town) he could not access six of them in his wheelchair.

[Duckster]

Some light reading:
[ul]
[li]http://www.ada.gov/[/li][li]http://www.ada.gov/regs2010/smallbusiness/smallbusprimer2010.htm[/li][li]http://www.access-board.gov/guidelines-and-standards/buildings-and-sites[/li][li]https://www.osha.gov/[/li][/ul]
Important point: There is no “grandfather clause” under the ADA.

Is my business required to remove barriers?

                     If your business provides goods and services to the  public, you are required to remove barriers if doing so is "readily  achievable". Such a business is called a public accommodation because it  serves the public. If your business is not open to the public but is  only a place of employment like a warehouse, manufacturing facility or  office building, then there is no requirement to remove barriers. Such a  facility is called a commercial facility. While the operator of a  commercial facility is not required to remove barriers, you must comply  with the ADA Standards for Accessible Design when you alter, renovate or  expand your facility.

        
         ***I operate a restaurant that opened in 1991.  The city required that the restaurant comply with the local  accessibility code. Is the restaurant "grandfathered" and not required  to remove barriers as required by the ADA?
                ***
            No. A restaurant is a public accommodation and a place of public  accommodation must remove barriers when it is readily achievable to do  so. Although the facility may be "grandfathered" according to the local  building code, the ADA does not have a provision to "grandfather" a  facility. While a local building authority may not require any  modifications to bring a building "up to code" until a renovation or  major alteration is done, the ADA requires that a place of public  accommodation remove barriers that are readily achievable even when no  alterations or renovations are planned.

Redirecting…

[ivylass]

Really? How very interesting. I was told by the clerk at City Hall that the businesses were “grandfathered” in.

[Duckster]

@ivylass

Really? How very interesting. I was told by the clerk at City Hall that the businesses were “grandfathered” in.

Local building codes may be “grandfathered in,” but not ADA.

What state were you in at the time (if you don’t want to share the town name)?

[ivylass]

Cedar Key, Florida. I talked to a clerk at City Hall. He’s the one that told me about the “old buildings” being grandfathered in.

[stillownedbysetters]

There is a small loophole in ADA, at least as far as employers are concerned, that requires the employer to make REASONABLE accommodations (capitals mine). In some cases, depending on the scope of the changes and the cost involved, exceptions are granted to currently existing businesses. I do not know whether this translates over to the businesses open to the public side, but it’s certainly possible that it could.

In either situation, though, a business would have a tough time getting out of installing accommodations if they were doing renovations of any type to the buidling.

[Senegoid]

There are ADA trolls – lawyers in private practice who make it their business to go around inspecting businesses for ADA violations (or recruiting disabled people to do so) and suing them, taking a cut themselves for their legal services of course. California apparently has laws allowing this.

State Senator Cathleen Galgiani writes an op-ed describing how these laws are being abused by lawyers to go around suing businesses for the most trivial and frivolous infractions, often extracting settlements out of business owners who would otherwise face ruinous legal costs and remodeling expenses. Cathleen Galgiani: The Americans with Disabilities Act is being abused in California, Cathleen Galgiani, Lodi News, May 13, 2015.

There are lawyers who work with a person with a disability who will threaten the lawsuit and offer to settle for thousands of dollars. The disabled person drives around the state from community to community looking for minor violations, some that may have been in compliance until recent changes. They then have the lawyer threaten suits and collect thousands of dollars even though they were not harmed. If the owner pays this, they are still not in compliance and are still open to additional lawsuits and the state fines.

Small local businesses are the main focus of these predatory suits, as they do not have legal departments to advise them on these complex regulations. Some owners have paid out thousands of dollars for minor violations of the current requirements, and that is without yet going to the expense to correct the problems that they didn’t know existed. Several businesses in our area have closed because the costs of the lawsuit and the potential fines exceeded the cost of correcting the problems.

Some of these ADA lawsuit scams have been well documented by a series of articles and commentaries in our local press in San Joaquin, Stanislaus and Merced counties.

The suits are often frivolous, and apparently under current state law, businesses are not necessarily given any notice or opportunity to remediate before being sued:

These regulations are changed every few years by the State Architect’s office. Notices are not sent out to businesses, and even many city and county building inspectors are not familiar with the details. If a sign is not the current requirement or posted at the correct height or markings on the parking area are not the right color, the property or business owner is out of compliance and can be sued by a private party and penalized $4,000 per violation by the court under California’s Unruh Act discrimination law. All this before getting an opportunity to correct the violation. California’s law and regulations are primarily penalizing rather than guiding.

[doreen]

@ivylass

Cedar Key, Florida. I talked to a clerk at City Hall. He’s the one that told me about the “old buildings” being grandfathered in.

Old buildings aren’t grandfathered in - that would mean they would never have to meet the requirements of the ADA simply because they were built prior to a certain date. However, this paragraph from Duckster’s fourth link could easily have been misunderstood by someone in the clerks office as referring to grandfathering.

In some instances, especially in older buildings, it may not be readily achievable to remove some architectural barriers. For example, a restaurant with several steps leading to its entrance may determine that it cannot afford to install a ramp or a lift. In this situation, the restaurant must provide its services in another way if that is readily achievable, such as providing takeout service.

[GrumpyBunny]

@ivylass

Cedar Key, Florida. I talked to a clerk at City Hall. He’s the one that told me about the “old buildings” being grandfathered in.

The clerks at City Hall are probably lovely people, but not ADA attorneys. I imagine they don’t know anything other than what they’ve been told, from who knows what source.

[ivylass]

Senegoid, I don’t doubt there are people who are lawsuit happy. I am not interested in suing anyone. We were only there for a weekend and had a lovely time, even if there were several shops and restaurants we couldn’t patronize. I just wanted clarification on what accommodations a public business has to make for those who are in wheelchairs. It seems to me some of these businesses are operating out of ignorance, rather than malice.

Also, based on the reviews of the restaurant with the broken elevator that I have since read, it doesn’t surprise me that they can’t afford to fix it for “years.” In any event, we found another restaurant that was wheelchair accessible (although the hotel attached to it isn’t) and had an utterly fantastic meal.

[Hershele_Ostropoler]

@Senegoid

There are ADA trolls – lawyers in private practice who make it their business to go around inspecting businesses for ADA violations (or recruiting disabled people to do so) and suing them, taking a cut themselves for their legal services of course. California apparently has laws allowing this.

I’m not sure why this is a problem, except for this part:

under current state law, businesses are not necessarily given any notice or opportunity to remediate before being sued

[Duckster]

@stillownedbysetters

There is a small loophole in ADA, at least as far as employers are concerned, that requires the employer to make REASONABLE accommodations (capitals mine).

There is no ADA loophole. Reasonable accommodation (RA) refers to an employee seeking a change in their working condition based upon a disability. RA does not apply to a business or other entity attempting to circumvent required accessibility changes.

Florescent lights do not agree with me. My RA is to have all of the florescent lights within and around my work area removed. However, those lights where building safety might be compromised, regardless of my sensitivity to them, cannot be removed.

Florida is a pro-business state. It’s consumer protection laws and employee protection laws are weak, or non-existent. It is not surprising that ADA in Florida has excuses made for it so a business can claim not to comply. The city clerk is misinformed, ignorant or being deliberate deceptive.

[Nava]

IANAL, but it seems to me as if a key concept here is that, according to Duckster’s cite, businesses must re-fit to comply with ADA when doing so is “readily achievable”; this includes having to do so if and when they’re doing a remodel for other reasons.

So, they’re not required to do a remodel exclusively in order to comply with ADA, and if they haven’t done any remodels since ADA came out, they haven’t been required to refit. There may also be cases where there actually were remodels but either nobody thought of ADA or they… dunnow, decided that since the idea was to redo the kitchen, there was no reason to redo the washroom and the entrance, that a requirement to do so would go beyond “readily achievable”.

[kopek]

Depending on the inspectors and such, it can get a little silly IMHO. Where I used to work was a sort of hobby shop open to the public. Because of the building design, location (on a sloping sidewalk), and other factors there was just no real way to ad a ramp or any actual handicapped access - the cost would have been huge and violated other codes in the process. And the bathroom was not for the public (or even really good customers let alone the casual walk-in) and located in the basement down a fairly narrow longer staircase. Said bathroom was little more than an inside outhouse - a toilet with almost freestanding panel walls and a door on. But the “shithole” as we called it remained a shithole because if he remodeled it at all it would have to be made ADA compliant according to the local building board. Forget that no-one in a wheelchair could ever come into the shop, let alone make it down to the bathroom - those standards would have to be met.

Now I am not saying the ADA is a bad thing; it isn’t. But like many laws the difference between intent and effect can make your mileage vary wildly.