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The Sun Country Connection
February 13, 2007
 Waiting
for an ADA Claim
James M.
Roth, The Roth Law Firm
The Americans with Disabilities Act imposes
accessibility requirements upon all buildings that are open to the
public. Interpretive regulations are issued by the United States Access
Board in the form of the ADA Access Guidelines for Buildings and
Facilities (“ADAAG”), which set minimum standards for accessibility
requirements. California also imposes minimum accessibility requirements
(which can be more, but not less stringent than ADAAG) via its building
code.
The purpose of this article is to identify general California and
federal statutory, administrative and decisional law for demonstrative
purposes only. The reader is cautioned to verify the applicable federal
and/or state law as it may apply to the reader's specific facts and
circumstances. The opinions and comments contained herein are intended
to inform and educate. Although this article does not contain all
possible scenarios which may affect the reader, it is intended to
provide general information that may be helpful as a starting point in
addressing ADA issues and concerns.
It’s a fair statement that the vast majority of
business buildings contain over 20 violations of accessibility
requirements, whether they are new or old. Obviously, many older
buildings constructed before these requirements were imposed are
non-compliant. But most new buildings are also non-compliant in many
areas, for several reasons: (1) The sheer number and complexity of
accessibility regulations means that no architect, contractor or even
inspector is familiar enough with all of them to ensure that a new
building is fully compliant, (2) many accessibility issues require
constant maintenance, such as the requirement regarding the permissible
amount of force that may be used to open a door, and (3) many
accessibility issues relate to non-construction items, such as the
placement and design of tables, chairs, and other furniture. Many
attempts at reform have been tried at the state and federal levels, but
without any measurable success.
If your place of business is non-compliant, you may
be sued for statutory penalties and injunctive relief. Because
inaccessibility is viewed as discrimination, there are a host of
statutory penalties that arise under both state and federal law. The law
also provides for treble (i.e., three times) the actual damages and
attorneys’ fees. Typically, however, these cases are settled for an
agreement to undertake some improvements, pay to the claimant and
his/her attorney an agreed upon amount for damages and attorney’s fees.
While the law provides the business owner with a claim that the required
changes would cause and result in a hardship, such a claim is usually
not a complete defense. Rather, it should be taken into consideration
when determining what changes need to be undertaken.
Insurance coverage is generally not available
because there is no real “occurrence” as required by the police for
coverage to apply. However, insurance companies are now offering
endorsements for such claims. The reader is encouraged to contact their
insurance representative to determine if availability of such coverage.
Complaints under the ADA typically arise in the
context of the Landlord/Tenant and the Buyer/Seller relationships.
Landlord/Tenant Liability
Claimants typically sue both landlords and tenants.
And both landlords and tenants are liable to the Claimant, although,
depending on the wording of the lease, they may be entitled to indemnity
from each other. A tenant’s general lease requirement to “comply with
all applicable laws” does not, standing alone, shift the burden to the
tenant of complying with those disabled access laws requiring curative
actions of a substantial nature. The courts consider the following
factors in deciding whether the tenant may seek indemnity from the
landlord, or vice versa (Brown v. Green (1994) 8 Cal.4th 812, 829-834):
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The relationship of the cost of the curative action to the
rent payable over the life of the lease;
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he term of the lease;
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The relationship between the benefit of the repair to the
tenant versus the benefit to the landlord;
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Whether the curative action is structural or
nonstructural;
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The degree to which the tenant’s enjoyment of the premises
will be impeded while the curative action is being undertaken; and
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The likelihood the parties contemplated the application of
the particular law or order involved when they entered into their lease.
Buyer/Seller Liability
If a lawsuit is filed based on a visit to the property that occurred
before the sale of the property, there will be an issue as to whether
the buyer or seller is responsible for handling the complaint. Unless
spelled out in the purchase agreement, the answer is unclear.
If the case is viewed as a tort action, similar to a “slip-and-fall”
premises liability case, then as between the buyer and seller, the
seller is more likely to be liable, as the owner of the property at the
time the plaintiff entered the premises. Obviously, the buyer had no
control over the premises at that time. But if the lawsuit is viewed as
petitioning the court to order repairs to the property, it will likely
be the buyer’s responsibility. He or she accepted the property “as is,”
after an inspection, and accordingly, it is his responsibility to
undertake any needed repairs to the building.
Hypothetically speaking
You own a restaurant in a shopping center. The plaintiff arrives in a
wheelchair one day. A few months later, you and your landlord are sued
for the following violations:
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There is no “Van-Accessible” sign in front of your
disabled parking space, even though it is clearly identified as a
handicapped parking spot.
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The stripes for the disabled parking spaces are one foot
too short.
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The amount of pressure required to open the front door is
too great.
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The tables do not have the required leg room underneath.
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The sink in the bathroom is ten inches too high.
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The hot water pipes for the bathroom sink are not
insulated.
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The towel dispenser is one inch too high.
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The height of the threshold at the entrance to the
restaurant is half an inch too high.
The bad news: You will probably have to fix all of
these problems and pay a small sum to the plaintiff.
The good news: You will probably be able to
convince your landlord to chip in for the parking-related problems.
These are examples of common problems for landlords, tenants, buyers and
sellers of commercial real property. If you have any questions or
concerns regarding your potential exposure to ADA claims, you should
immediately consult an attorney in an effort to protect your rights and
remedies.
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Representing a broad spectrum of clients ranging
from large corporations to small businesses and individuals, Jim Roth
has been involved in matters ranging from simple negotiations to complex
litigation involving multi-million dollar exposure. His firm
concentrates its practice in the areas of real estate, business and
corporate matters from negotiations to litigation. You can reach him at
www.therothlawfirm.com.
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