Accessibility Today

Consult Before You Change

2015-06-17T13:30:00.000-07:00

At a local restaurant I am reminded how building owners can get themselves into trouble with the Americans with Disabilities Act (ADA) in an instant. I frequent a nicely themed restaurant that was just built a couple of years ago so you would expect the building meets all of the requirements of the ADA and it probably does, however, the owner has made an innocent change that could cost them several thousand dollars in the form of an ADA lawsuit.

When the restaurant was built a couple of years ago, it had the proper signage on the restroom doors as required by the ADA…………..a triangle on the men’s and a circle on the women’s. Everything is good…………….right?? Wrong!!!

As you can see from the picture above, the owner has installed a themed porthole window over the ADA restroom door signage. Unfortunately by installing the porthole window the owner does not realize they have violated the ADA because they simply do not understand the intent of the ADA.

What the owner in this case does not understand is the signs on the restroom entry door are an indication to the blind or visually impaired which restroom is appropriate for their sex. Blind or visually impaired individuals will feel the signs to determine if it’s the men’s due to the points of the triangle or women’s due to the lack of points. These symbols are of utmost importance to those who are blind or have limited vision in finding and using the correct restroom. This one violation may and probably will cost the restaurant several thousand dollars.

I have discussed this with one of the restaurant managers and was met with limited concern and was informed the building met the current codes. What management did not understand is that while the restaurant may have met all of the code requirements at the time, they have violated the ADA when they added the porthole window and now may be the subject of an ADA lawsuit totaling thousand of dollars.

It’s an odd quirk of the ADA that simple changes the owner innocently makes can result in a violation of the ADA and these changes are exactly what serial plaintiffs are looking to identify when they file a lawsuit for violations of the ADA. This is especially true in the restrooms where there are usually a multitude of violations including accessories that are mounted too high.

So how do owners protect themselves? They enlist the services of an ADA professional. In California, this would be a Certified Access Specialist (CASp) who is an expert on the Americans with Disabilities Act (ADA) and can provide a CASp Report which outlines any areas of non-compliance with the ADA. In addition, the owner needs to think of the ADA professional as part of his team of consultants similar to the attorney or the accountant. Any changes to the existing facility need to discussed with the ADA professional before being implemented.

Signage Matters

2014-10-22T13:00:00.000-07:00

I am still to this day mystified as to how business owners react to the Americans with Disabilities Act (ADA). The photograph above is a prime example of exactly what I am describing.

This photograph was taken at a gas station in the City of Pico Rivera. The gas station has one van accessible parking space; however, there was a 3/4” change in elevation between the van accessible parking space and the walkway to the gas station convenience store. Because of the ¾” change in elevation, the gas station received a lawsuit and as a result, they removed the entire van accessible parking space and poured a new concrete parking space that was 100% level with the adjacent walkway. Everything is good now????

Well, as with so many businesses, the parking space was only one of many violations of the ADA that exist at the gas station. It was at this point that I offered my services to the gas station manager as I thought they may want to avoid future lawsuits.

Sure enough, as with most business, they believed they were O.K. now and did not want to enlist my services as a professional ADA consultant.

Unfortunately, the business owner has gone from bad to worse if that is possible and will probably be involved in another lawsuit in the next year or two. The basis of the lawsuit will be the incorrect signage located in front of the new van accessible parking space. Of particular issue is the tow away sign which I will discuss.

The tow away sign is required at all vehicular entrances. There is an exception that allows the tow away sign to be located adjacent to the accessible space as shown above. So far, so good, but now we need to examine the sign. The accessibility code is very specific as to the language of the sign and provides the exact language in a paragraph of the accessibility codes. In addition, the signage is to provide the location and the telephone number of where a towed vehicle can be obtained. This contact information is important because legitimate tow companies will not tow without that information. Finally, the accessibility code state the sign shall be 17” wide x 22” high and shall have text that is 1” high. It’s obvious the tow away sign in the photograph above does not meet any of these very specific requirements.

Believe it or not there are numerous other issues with regards to the other signage shown above including sign size, mounting height and other missing signage. It’s hard to believe, but these few signs can get the business owner into a whole lot of trouble in the form a lawsuit.

Now for the sad news……..correct signage for this location will probably cost a total of $150.00 maximum. In reality if there is a lawsuit, the cost to the business owner will be no where near that amount. More than likely the owner will pay $4,000.00 to a plaintiff or if the business owner chooses to fight it, the cost of an attorney will exceed the cost of the correct signage. And to be honest, my fees as an ADA consultant would be far less then both the cost of a lawsuit and the cost of an attorney.

Unfortunately, I see this often where owners are just too stubborn to pay for the services of an ADA consultant and end up in a lawsuit where they ultimately pay the plaintiff and then pay my fee as an ADA consultant and then pay the cost to fix the issue. Why are business owner not proactive and eliminate the lawsuit by enlisting my services? Now one will ever know what these business owners are thinking, but one thing is for sure………….it’s costing business owners thousands of needless dollars.

Door Knobs – When and Where?

2014-07-30T13:00:00.000-07:00

It’s surprising to me that although door knobs such at the one shown in the photograph above have not been allowed by the code for probably 20 years, I still see them quite often. Door knobs are not allowed anywhere in a commercial building. Remember, while most believe the Americans with Disabilities Act (ADA) is only for those individuals in a wheelchair that is simply not true. The ADA is for anyone with a disability and included in that group would be those individuals with arthritis. As you probably know, arthritis affects the joints and in some cases, makes it difficult or impossible for suffers to use their hands.

As a result, those with arthritis in their hands can not open doors with knobs. The ADA requires door hardware that does not require tight grasping, tight pinching or twisting of the wrist to operate. A door knob requires that someone must tightly grasp the door know and twist with their wrist to open and this can be almost impossible for those with arthritis.

To solve this problem, most commercial building owners simply install lever hardware such as the one shown in the photograph at the right. As you can see from the photograph, no tight grasping is required to open the door. Someone with arthritis can simply hit the lever with their fist to open the In addition to the requirements for lever hardware, in some building occupancies the lever must return to within ½” of the door to prevent clothing from being caught by the lever as someone is exiting the building.
door.

Building owners should be aware there are certain other requirements for the door hardware including the mounting height of the hardware. Building owners are advised to secure professional assistance in selecting and installing door hardware.

What’s The Deal at the Bottom of the Door?

2014-06-25T13:00:00.000-07:00

Correct Door Bottom

Modified Door Bottom

In my previous blog, I discussed some of the work involved in a California Certified Access Specialist (CASp) Report and I specifically discussed some of the checks that are required for doors. One of the door checks involves the rail at the bottom of the door. In general, the ADA requires the bottom rail to be smooth and a minimum of 10” high. This is mostly a problem for glass storefront doors. Newer storefront doors easily meet this requirement, but older doors do not.

The reason behind the 10” bottom rail is simple…………to assist someone in a wheelchair in opening the door. The issue is that without a 10” bottom rail, the footrest of the wheelchair may get caught on the door frame and make it difficult if not impossible for someone in a wheelchair to open the door and in a worst case scenario, the glass door could get broken.

The picture shown above on the left was taken at a Macy’s Department Store. I am not sure if the work they have done is the result of a lawsuit, but they recently made one door at each entry into an accessible door by modifying the bottom rail. In addition, they have added an International Symbol Accessibility (ISA) as required, although it’s located a little too low.

This picture above on the right depicts how the door bottom on an accessible store front should appear. You will also notice this door does not have the ISA as required, however, that is a simple correction to make. You can also see from the photograph that it’s easy for a serial plaintiff to “drive by” and clearly see if your door has the required 10 door bottom without even taking a single measurement.

If the doors into your facility do not have the required 10” door bottom, then you should immediately contact a door contractor to get the door modified to include the required door bottom..

Why Does It Take So Long?

2014-05-28T13:00:00.000-07:00

Clients often ask me………….why does an ADA Accessibility Field Survey & Report take so long?? In the clients mind you simply need to visit a property, look at a couple of items and do a little writing. How can it take so long?? The answer to this question varies by property; however, to start I usually explain to clients the tremendous amount of information that must be gathered during an ADA Accessibility Field Survey.

As an example, for every door in the building I must check about 10 separate items. This list includes, but is not limited to the following:

1. Width

2. Height

3. Threshold

4. Kickplate

5. Door Lever

6. Lever Height

7. Closing Speed

8. Push/Pull Force

9. Strike Edge Clearance ( Interior & Exterior )

10. Required Signage

For a high rise office building there can easily be 20 to 30 doors per floor with each door taking 10 – 15 minute per door. This could result in a door survey that takes several hours especially if there are many different types of doors. And this is just the time necessary to survey the doors. There are many other items that must be checked during an Accessibility Survey that can also take a number of hours to survey including the toilet rooms where there is an endless list of items that must be checked.

In addition to the field survey, there can be a number of hours spent in the preparation of the data into a format for presentation to the client depending on what type of report the client is requesting. In California, the “gold standard” is the Certified Access Specialist Report. This report is the most inclusive and best report for the client; however, it takes a number of hours after the field survey to complete. Time estimates vary by CASp, but the office time to complete the report is often a multiple of the hours spent in the field. And in addition, a CASp may need to spend a number of hours in researching a particular issues as the accessibility requirements are general in nature and don’t address specific issues as they relate to a specific property.

All in all, the hours needed to survey and prepare the data for a client can often equal several days for even the smallest project.

Parking Must Be Level

2014-05-13T13:00:00.000-07:00

Businesses all over California are being hit by lawsuits for nonconforming accessible parking stalls. While most of these stalls may appear to be in compliance, most are not and even if the accessible stall is the correct size and has the proper signage, there are still hidden nonconforming conditions on the ground in the form of the accessible parking stall level.

Accessible parking stalls and the adjacent aisle must be level. If not, those disabled individuals that use a specialized van can not load and unload via the ramp or hydraulic lift that many of the vans have on the passenger side. This is a really big issue as it really makes no sense to have an accessible stall with the proper signage that the disabled can not use because they can not get out of their van.

I wrote about this issue in detail in my blog on December 9, 2013 at which time I showed an example of a nonconforming stall and discussed the issues related to stall level and despite my warnings, businesses are continuing to have lawsuits filed against them for accessible parking spaces that are not level. Drive around town as I do and it’s easy to spot businesses that have received lawsuits………….they have a brand new completely regarded and repaved accessible parking stall. The photograph above shows just such case.

Previously the parking lot shown in the photograph had an accessible parking stall at the other end of the parking lot that was not level. To get this parking space level, the new accessible space needed to be completely regarded and a retaining curb was installed to deal with the grade difference. Not necessarily the best situation, but always better than a lawsuit.

As many of the ADA lawsuits that my clients receive are for ADA violations in the parking lot, I can not stress enough that accessibility in parking lots must be PERFECT. Having a parking lot with perfect accessibility is one of the best ways to avoid ADA lawsuits although it’s also important to address ALL of the ADA issues on a property to be completely secure. Also, please remember when making ADA improvements, you must consult your local building officials as to any permits or approvals that may be required.

Don't Use The Word Handicapped

2014-04-30T13:00:00.000-07:00

I was meeting with a client the other day and as we were discussing the improvements that he needed to make to his property, he kept referring to them as handicapped improvements. After a couple mentions of the word, I explained to him the word handicapped was demeaning to those with disabilities and he should use the word disabled instead of handicapped.

The reason we use the word disabled instead of handicapped is because many individuals in the disabled community do not consider their disability a handicapped. Many in the disabled community can have completely normal lives despite their disability so to describe them as handicapped would be totally inaccurate.

Using the word disabled instead of handicapped is hard for many of those in the design profession including architects, building officials and contractors because when the Americans with Disabilities Act (ADA) was first sign into law, many would refer to the improvements as handicapped improvements and as time went on, the word stuck.

Now in 2014, we and I specifically need to make sure we all use the correct nomenclature and refer to individuals as disabled and the improvements that are made for the disabled are referred to as accessibility improvements.

Non-Conforming Detectable Warnings

2014-04-16T13:00:00.000-07:00

Detectable Warnings are used to warn someone with limited or no eyesight that they are about to enter a dangerous area such as rail tracks, a vehicular pathway or even a water feature. These warnings can literally be a life-savor for the blind.

Section 11B-705 of the California Building Code (CBC) details the specific requirements for Detectable Warnings. Some of the information included in 11B-705 includes horizontal and vertical dimensions for the required domes as well as the horizontal spacing for the domes. It also states that Detectable Warnings should be of a contrasting color and of a different texture from the surrounding surfaces. There is even a mathematical formula within the section to determine if the required visual contrast is acceptable.

In addition to requirements for size, color and texture, CBC Section 11B-705.3 states that Detectable Warnings be approved by the Division of the State Architect (DSA). This is important because several years ago, there were several products on the market that did not meet the requirements and deteriorated over time ultimately providing little or no warning to the blind.

The photograph above shows a Detectable Warning that is made out of stamped concrete. As you can see from the photograph, the domes that warn the blind that they are about to venture into traffic lanes are badly worn and now provide little if any warning for the blind. In addition, the stamped concrete provides no contrasting color to warn those with limited sight. This is one of the reasons that Detectable Warnings are to be approved by the Division of the State Architect. It’s also important to note that because the Detectable Warnings need to be of a type approved by the State Architect, they tend to be a little expensive, but are well worth the added expense as they provide a degree of safety for those individuals with limited or no vision.

Handrails For Ramps

2014-03-17T13:00:00.000-07:00

The photograph above shows a recently completed ramp to a newly renovated tenant space. What’s surprising about this photograph are the handrails on either side of the ramp. The ADA specifically requires that handrails be located on either side of a ramp and that they be continuous to each end of the ramp. Why do they need to be continuous?? The answer is simple………many individuals with disabilities are not very steady on their feet and this is especially true when they are walking on inclined surfaces. As a result, the handrails need to be continuous to allow someone to completely transverse the full length of the ramp while holding onto the handrail. As you can see from the photograph, the handrail on one side is not continuous and therefore this handrail could be the subject of an ADA lawsuit.

It’s also a requirement of the ADA that rails extend 12” beyond the top and the bottom of the ramp. This is so that someone with a disability can steady themselves at the top or bottom of the ramp by holding onto the 12” rail extension before they continue on their way.

It’s also important to note that there is a very specific height range for the top of the handrail and specific dimensions for the diameter of the rail. In addition and in order to provide stability to wheelchair users, a rail or a curb is also required at the bottom of the handrail as shown in the photograph in order to keep the wheels of the wheelchair from going off the edge of the ramp.

There are also some very specific requirements for the slope of the ramp. It can not slope over 8.33% and this is considered the maximum slope. When designing a ramp, it should be designed with the least slope possible as even a ramp that is sloped at 8.33% is difficult for those with disabilities to use. For the layperson, a slope of 8.33% translates into 12” in length for every 1” in height rise. For example, if a ramp needs to go up 12” then it would need to be 12’-0” long. There are also certain issues with regards to landings, etc. that must be addressed when designing a ramp.

Eliminating Obstacles

2014-02-18T13:00:00.000-08:00

Stairs are a big obstacle for wheelchairs. If someone must access stairs to get to the main entry door of your facility then you are discriminating against the disabled because they can not enter and utilize the services of your facility as others can.

There are many ways to address this issue and make stairs accessible, but in general, they usually all involve a ramp. The photograph shown above is one way to address the issue. As you can see, a ramp has been added to the stairs that still allows the stairs to be utilized while providing a ramp for the disabled. As a side note, some believe that a portable ramp will work instead of a permanent ramp; however, this is not necessarily true. Those with disabilities should not be required to wait until an employee can find and install the temporary ramp especially since the ADA has been in effect for over 20 years now.

While ramps offer access to the disabled, it’s important to understand there are many requirements to be satisfied when constructing a ramp. There are certain dimensions for the height and thickness of the handrail, and there needs to be a based at the bottom of the handrail so a wheelchair will not accidently run off the ramp. There are also strict guidelines with regards to the slope of the ramp.

One of the issues about ramps that seems to confuse everyone is why the handrail is extended beyond the top and bottom of a ramp. The answer to this is really very simple. Many of those with disabilities are able to walk, but they are not very steady of their feet and any change in elevation such as going up a ramp causes them to be even less stable. The purpose of the extensions at the top and the bottom is to allow someone that is not very stable on their feet to stop on the level surface at the top or bottom and hold on to the rail to stabilize themselves before they continue on their way.

ADA Strategies

2014-02-11T13:00:00.000-08:00

Last week in a telephone call I was reminded again as to how property and business owners struggle AGAINST the Americans with Disabilities Act (ADA). In public most will say they support the ADA 100%, but when asked to make improvements to their businesses or properties to accommodate the disabled, many will spend thousands of dollars to “get out of it” instead of making the improvements and while they may be partially successful at “getting out if it”, most do not realize it’s only a temporary solution.

There are many ways businesses get out of making ADA improvements. Some simply are reactionary and when they get a lawsuit for violations of the ADA they simply make an out of court settlement and consider it the cost of doing business. This is unfortunate as this strategy does nothing to protect them against further lawsuits. I have seen businesses get ADA lawsuits 3 and 4 times and each time they pay out several thousands dollars and still have not made any improvements that will prevent future ADA lawsuits. This quite simply is a loosing strategy.

Another strategy is intentionally ignorance of the law. I can not tell you how many property and business owners say to me they had no idea they were out of compliance with the ADA. Along this same theme are owners who choose to only have isolated portions of their properties surveyed by an accessibility professional. They somehow believe that if they don’t know about all of the violations on their property or in their business then they can claim ignorance of the law. While not being a lawyer, I can certainly tell you this is not true and ignorance of the law is no a defense against an ADA lawsuits.

A third strategy commonly used by property and business owners is to try and comply, but do so by “cutting corners”. This usually happens after a lawsuit has been filed and the property or business owner decides to address the issue in the cheapest manner possible. This often involves blindly making corrections as described in the lawsuit and falsely believing they have fully addressed the problem not realizing that their property or business has several other violations that could and probably will be the subject of a lawsuit in the future.

Property and business owners need to understand there is no defense for not conforming to the Americans with Disabilities Act (ADA) and they should enlist the services of an accessibility professional ( CASp in California ) to help them navigate the often confusing world of accessibility. Not only does full compliance help to prevent lawsuits, it also increases revenues as there are many in the disabled community who only patronize properties and businesses that are fully compliant with the ADA.

Another Non-Conforming Parking Space

2014-02-03T13:00:00.000-08:00

The photograph to the left is another example of a non-conforming accessible parking stall. To the untrained eye, this accessible space probably seems to be acceptable, but a serial plaintiff driving by will see this accessible space as a good source of money………and they would be correct.

While everyone appreciates the building owner for making the effort, it really diminished the effort with its done incorrectly. For starters, this is the only accessible space on the property and therefore its required to be a VAN accessible space. In order to make the accessible space shown in the photograph a van accessible space, the aisle needs to be wider and more importantly, it needs to be located on the passenger side of the parking stall.

Another violation is the ramp located in the space of the aisle. There can be no ramps in the aisle and in fact, the parking space AND the aisle should be almost flat with just enough slope to provide for drainage. Instead of locating the ramp in the aisle, a curb ramp such as the one shown in the photograph at the right could be used. If curb ramp does not work, then a standard ramp could also be used, as long as it’s separate from the accessible parking space or aisle.

Finally, there is no post or wall mounted signage for this parking space. There should be an International Symbol of Accessibility (ISA) along with other assorted signs mounted to the column or a post in front of the parking space. It should also be noted that I have not measured the size of this parking space, but the overall size of the accessible space is also suspect.

The ADA Is Not Arbitrary

2014-01-27T13:00:00.000-08:00

A lot of my clients inquire as why is it a big deal if my ramp is a little too steep or a door is a little too narrow. Most believe that if they are somewhat in compliance with the ADA, they are O.K. and should not be subject to lawsuits. Well nothing could be farther from the truth.

Nothing in the ADA is arbitrary. The ADA was not developed in a vacuum; instead it was developed over years of working with government agencies, disability rights groups and many others to get a document that really does provide assistance to the disabled community. The requirements of the ADA are based on the actual real life experiences of the disabled community and on what is needed to allow persons with a disability to function normally in society.

Take for example, a ramp that is a little too steep. Most do not understand how difficult it is for a disabled person to wheel up the slope of a ramp. It requires a lot of upper body strength that many disabled people do not have and for every degree of extra slope, it becomes increasingly more difficult for a disabled person to get to the top of a ramp. This is also the reason the ADA specifies the need for a landing on the ramp which gives the disabled person the opportunity to stop on a level surface and take a mini break before proceeding to the top of the ramp.

In regards to the door, wheel chairs are built to a certain dimension and therefore a door opening must be large enough to allow the wheel chair to pass with a little extra clearance on each side. Failure to provide an opening large enough does not allow a disabled person to enter a facility and could subject the owner or tenant to an ADA lawsuit.

As you can see from the two examples above, the ADA is not arbitrary……………every requirement or dimension has a basis of fact for the disabled community. Despite this, many of my clients still continue to believe that if they get close to meeting the requirements of the ADA, they will be free from ADA lawsuits, but this is simply not true. If you do not meet the requirements 100%, then you are subjecting yourself to a future ADA lawsuit. This is also the reason the property owners and tenants must enlist the services of professionals who KNOW the ADA. I have seen so many instances where owners have hired contractors to do the work only to find out the contractor did the work incorrectly when they get another lawsuit. Do not subject yourself to unnecessary lawsuits by not enlist the services of an ADA Professional ( CASp in California ) to advise you on issues related to the ADA.

Another Non-Conforming Space

2014-01-22T13:00:00.000-08:00

The photograph to the right shows another non-conforming parking space. Previously, this restaurant did not have any accessible parking and then one day this accessible space appeared. I suspect they have been It’s obvious from looking at the parking space that someone with no knowledge of the ADA made the improvements.

involved in an ADA lawsuit.

For starters, while you can certainly see the sign at the head of the space, it’s not reflectorized as required in by the ADA. In addition, the image of an occupant in a wheel chair is facing the wrong direction. The good news here is that the sign is required to be a certain minimum size and the sign on the wall far exceeds the minimum size requirements. There are also other signs that should be included on the wall that are missing.

In regards to the parking space there are also numerous violations. While the size of the parking stall is in question, there is no question that the aisle is not the proper size for a van accessible space and the aisle is on the wrong side of the space. Additionally, the emblem of an occupant in a wheel chair is facing the wrong direction and the aisle is missing the signage that should be painted within its boarder.

While it’s impressive the business owner made an attempt to conform to the ADA, its clear there is still no understanding as to the intent of the ADA. As an example, having a parking stall and aisle that is non-conforming will not allow an accessible van to load and unload its occupant and therefore could be the subject of a lawsuit.

The All Inclusive ADA

2014-01-17T13:00:00.000-08:00

During the day I often receive a lot of telephone calls from business owners in trouble. They have just received a lawsuit citing their non-compliance with the Americans with Disabilities Act (ADA) and they are in a total state of confusion as to how to proceed. They will usually go on to explain that they have an ADA accessible parking space in front of their facility and their toilet rooms are also accessible so they have no idea as to why they have received a lawsuit for violations of the ADA.

After they explain their situation, I usually ask a few questions such as does your parking lot have a tow away sign mounted at the vehicular entry or does your toilet room have a circle or triangle on the door. It’s at this point they are usually puzzled as to how to answer the questions.

I then go on to explain to them why these are important and they become totally bewildered. Further, I go on to ask them questions such as does the front door exceed a push/pull force of 5 lbf and at this point they usually stop me and say they will just pay the plaintiff in an out of court settlement.

Paying a serial plaintiff in an out of court settlement sometimes works, but what business owners don’t understand is that many of the plaintiffs will return in six months or a year with even more violations of the ADA and file another lawsuit. This is a really common practice for serial plaintiffs as building and business owners really have no idea as to how many violations their facilities actually have.

To further explain, a simple entry door has 17 separate checks that must be made to assure it meets the requirements of the ADA. These checks include clearances around the door, size of the door, door closing speed to name just a few. The number of issues that could be the result of an ADA lawsuit is simply mind boggling to many business owners, but it’s just a further indication as to how easy it is for business and property owners to become targets of a lawsuit.

So how can business owners protect their businesses? The only real way to protect a business is to make sure it’s 100% accessible. The problem is however that there is no good way to figure out exactly what needs to be done to make a business accessible. That is why a business MUST enlist the services of an accessibility professional such as a Certified Access Specialist (CASp) in California or an Architect in other states. A CASp or Architect is someone who can guide businesses in the right direction in their endeavor to fully meet the requirements of the ADA.

Not Just One Violation

2014-01-13T13:00:00.000-08:00

I often find parking lots such as the one shown in the photograph at the right where the owners have obviously been involved in an ADA lawsuit. The indications include bright new blue paint and shinny new post signs, however, what I usually find is that while the building owner now believes they are secure from future lawsuits, they are not.

Serial plaintiffs are very good at what they do. Often they will perform a complete ADA Survey of a property without anyone knowing. Their survey will include both the exterior and interior and may include as may as 30 violations, however, when they do file a lawsuit, they often only include 12 of the 30 items. Why is this……………the answer is simple. They know that building owners and tenants will only correct items described in the lawsuit and are totally oblivious to other violations that may exist unless they enlist the services of an accessibility professional.

This practice allows the serial plaintiffs to come back again and again and file separate lawsuits at a later date. I have seen this happen several times. It is for this reason, that those building owners or tenants who are involved in a lawsuit must enlist the services of accessibility professional and they must address ALL of the violations on the site.

What is not shown in the photograph is that numerous other violations occur on the site including the lack of a tow away sign, designated pathway from the parking to the entry, proximity of the accessible parking to the main entry, incorrect signage on the wheel stop and requiring a disabled person to wheel or walk behind a car that is not their own to name just a few of the many violations.

It is obvious from reviewing this photograph that the building owner did not enlist the services of an accessibility professional because if they had, there would not be the number of violations that I have noted above. Building owners and tenants must understand that contractors do not have any formal training in the ADA. As a result, they often make simple mistakes such as those noted above that continue to subject building owners and tenants to lawsuits. To protect themselves, building owners and tenants are advised to hire an accessibility professional ( a CASp in California ) to survey the property and provide a report on the violations and then hire an Architect to develop construction drawings that can be submitted to the Authorities having Jurisdiction (AHJ’s). Having plans approved by the AHJ’s for everything but the smallest violations is really the only way for a building owner or tenant to have a reasonable level of protection against future ADA lawsuits.

Warnings for the Blind

2014-01-10T13:00:00.000-08:00

Detectable Warnings such as those shown in the photograph above have now become common place, but many facilities still do not have them and therefore are subjecting themselves to a lawsuit.

Some of the problem is that many buildings owners are confused about the use of Detectable Warnings. This confusion is legitimate because although Detectable Warnings were originally included in the ADA, they were soon suspended so that research could be conducted regarding varying tactile surfaces such as grooves, dimples, etc. The research found that in many cases those surfaces were in fact not detectable due to similarities to normal walking surfaces. Finally, in July 2001, the suspension was allowed to expire and Detectable Warnings were again required.

The purpose of Detectable Warnings is warn the sight impaired that they are about to enter a vehicular traffic pathway. The Detectable Warnings do this in two ways: 1) As opposed to other walking surfaces, they provide a very notable change of surface as someone is walking on them and 2) they are brightly colored so that they are highly visible to those with limited vision.

It should also be noted that the sight impaired usually have a heightened sense of hearing; however, with the new gasoline/electric engines that are much quieter, they are making it very dangerous for those with sight impairments. Now there is a real possibility that someone with limited sight may actually walk in front of a moving car in a parking lot and get seriously injured, therefore it’s important that buildings owners install Detectable Warnings that are approved by the State of California at vehicular traffic ways to help prevent this from happening.

Cross Slope on Accessible Pathways

2014-01-06T13:00:00.000-08:00

The ADA requires an accessible pathway from the onsite accessible parking to the main entry door. The pathway may slope in the direction of travel, however, it must never slope more than 8.33% and the ADA has certain requirements regarding handrails, curbs, etc for ramps. In addition, the cross-slope (in a direction opposite of the direction of travel) must not exceed 2%. These are just some of the requirements as there are also requirements for size and location of the accessible pathway to name just a few.

The photograph above shows a pathway violation at a facility that I recently visited. The accessible pathway marked by the faded blue cross hatched area overlaps the sloped area of a drain. Anyone can see the overlap is clearly sloped over 2% which is almost flat. No measurements are necessary to determine the excessive cross slope and therefore this pathway could be the subject of a lawsuit by a serial plaintiff. In addition, it’s not appropriate to have a disabled person navigate around a drain that may be full of water during a rain storm.

Although not shown in the photograph, another violation of the pathway is that it requires a disabled person in a wheelchair to wheel behind a car that is not their own. This is dangerous because someone backing out of a parking space may not see a disabled person in a wheelchair behind them.

Top Ten List

2013-12-31T13:00:00.000-08:00

On this last day of 2013, I thought it would be appropriate to do a Top Ten List. This list is for the exterior of the building and in no way should it be considered an all inclusive list. This is simply a list of issues that are high on the plaintiff’s hit list based on my experience over the last several years.

(1) Tow Away Sign – Is there a tow away sign at each vehicular entry way and more importantly, does it have the contact information completely fill out? Also, is it the sign the correct size and is it mounted at the proper height?

(2) Accessible Parking Spaces – All businesses with parking must have at least one van accessible parking space. If you have a parking lot and no accessible parking spaces, you will probably see a lawsuit in the next couple of years. In addition, depending on the total number of spaces in your parking lot, you may be required to have more than one accessible space.

(3) Slope of Accessible Parking – Currently there is a flood of lawsuits for accessible parking spaces with excessive slope. The accessible parking and accompanying aisle must be virtually flat; otherwise you are subjecting yourself to a lawsuit. This is one of the most important issues for businesses as we begin 2014 and it should be addressed as soon as possible.

(4) Size of Accessible Parking – The size of the accessible parking stalls and associated aisles is based on the total number of parking stalls required by code. By determining the number required accessible spaces, you can determine the parking stall and associates aisle size. The parking stall size is frequently the subject of lawsuits against business owners.

(5) Accessible Parking Pavement Signage – Your parking space should have a profile view of a wheelchair with an occupant painted on the pavement at the rear of the parking stall that is at least 36” x 36”.

(6) Accessible Parking Pole Signage – There must be certain signage at the head of the accessible parking stall based on the type of accessible stall. In addition, the signage needs to be the correct size and mounted at the correct height. Lack of proper signage is a big red flag to serial plaintiffs looking for businesses to file a lawsuit against.

(7) Public Way Access – It’s not uncommon for older properties to not have any access to the property from the public way. You must have an accessible route that is not the driveway. In addition, you must have an accessible route between all buildings on a site.

(8) Detectable Warnings – I have not previously discussed this in my blog, however, if an accessible pathway crosses a vehicular way in a parking lot then there should be a detectable warning at each end of the pathway as it crosses the vehicle way.

(9) Access to the Door – There must be access from the public way or accessible parking stall to the main entry door. The pathway must be the proper width and it must not exceed the slope as acceptable for a ramp. Additionally, the accessible way must not have any changes in vertical elevation of more than ½”.

(10) Protruding Objects – The accessible pathway to the door should be free of protruding objects that are not detectable by a sight impaired person using a cane. Objects that protrude and are too high to be detected by a cane are dangerous for sight impaired individuals who may accidently injure themselves by walking into them.

Hopefully this list has provided some insight into the issues that business owners should be reviewing at their property. I will provide additional list in a future blog that discussed additional issues inside the business.

Common ADA Mistakes That Businesses Make

2013-12-24T13:00:00.000-08:00

I often get phone calls from attorneys who ask me to visit their client’s business to confirm the merits of an Americans with Disabilities Act (ADA) lawsuit against their client. I usually tell the attorney that I can save them money by not visiting the site because I am almost 100% sure the violations claimed by the Serial Plaintiff are real. You see, there are soooooooo many violations of the Americans with Disabilities Act (ADA) by small businesses that serial plaintiffs really do not need to make up violations that do not exist. If a serial plaintiff claims they exist, then they probably do. After all, it has been estimated that 98% of businesses in California have at least one violation of the ADA that could result in a lawsuit.

Serial plaintiffs are really good as what they do and have honed their skills over the last several years. They will typically visit a business and record several violations, however, when the lawsuit is filed, they only cite the violations in the parking lot knowing full well that they will get to the other violations in a separate lawsuit to be filed in six months or a year. This is where many businesses go wrong…………they make the necessary corrections as described in the lawsuit and think they are in full compliance with the ADA, not realizing they have 20 other violations inside the building.

Another mistake that I see quite often is where business make the necessary ADA corrections based on the violations indicated in the lawsuit, but do so in such a way that they do not meet the minimum requirements of the ADA and therefore continue to subject themselves to an ADA lawsuit. In order to save money on their ADA improvements, business owners frequently hire General Contractors to do the work, however, what business owners do not understand is that contractors have no formal training in the ADA and typically only make ADA improvements based on plans prepared by an Architect and approved by the Authorities having Jurisdiction (AHJ’s).

In order to help prevent lawsuits for violations of the ADA, I would strongly encourage all businesses in California to enlist the services of an Architect who is also a Certified Access Specialist (CASp) (such as myself) so they can survey your business and provide you with a CASp Report and they can also prepare architectural drawings for the ADA improvements. In addition, and to provide further protections to the business owner, I would strongly encourage that all drawings prepared by an Architect be submitted to the Authorities having Jurisdiction (AHJ’s) that will provide a final check to confirm the drawings meet the accessibility requirements.

For those businesses located outside of California, I would still encourage business to enlist the services of an Architect to review their business with regards to accessibility and who can also prepare drawings for the ADA improvements. A drawing prepared by an Architect is one of the best ways to prevent lawsuits for violations of the Americans with Disabilities Act (ADA).

Disabled Access From The Public Way

2013-12-20T13:00:00.000-08:00

It’s important to remember that not all of the disabled arrive to a property in an automobile. Many are not able to drive and therefore must use public transportation. As a property owner, it’s your responsibility to get the disabled safely from the public way (sidewalk) onto the property and into your facility.

Many business owners believe that disabled arriving to the site from the public way can simply use the same driveway that the automobiles do. While this may be physically possible, this is not allowed by the ADA as it is dangerous for those in wheelchairs to interact with automobiles. After all, you must remember that those in a wheelchair are sitting down and therefore may not be visible to drivers.

As you can see from the photograph at the right, this property has access from the sidewalk; however, it prohibits access by someone in a wheelchair. This route needs to be modified to allow for access by the disabled. This means all of the requirements of an accessible route must be addressed including the width and slope of the access way to name just a few of the requirements.

It’s also important to note that once on the property, the accessible route must get the disabled person to the doors of all facilities on the site. This means that if there are several buildings on the site, they all need to be connected by an accessible route that meets all of the requirements such as ramps instead of stairs and maintaining the proper width.

Remember if a disabled person can not get from the public way (sidewalk) to the doors or your facility, then you are discriminating against that person and therefore may be the subject of a lawsuit.

The ADA - A Civil Rights Issue

2013-12-18T13:00:00.000-08:00

Many of my clients do not understand that the Americans with Disabilities Act (ADA) is one of the most important pieces of CIVIL RIGHTS legislation of our time. That’s right…….I said CIVIL RIGHTS. Just as you would not deny access to a business based on race, religion, color or national origin, the ADA provides those same protections to those with disabilities. It’s a misconception that the ADA is a building code. While it is true that much of the ADA has been incorporated into the California and other Building Codes for newer buildings, this is not necessarily true for older buildings.

While it may not seem like it, many businesses continue to deny access to those with disabilities every day without even knowing it. Examples include businesses with no accessible parking, stairs to the main entry doors and toilet rooms that are too small for those with disabilities. Despite the fact that the ADA is over 20 years old, those with disabilities continue to find obstacles on a daily basis. When a disabled person can not freely use your facility without encountering obstacles, then their civil rights have been violated and you could be subjected to a lawsuit for violations of the ADA.

Another misconception by many of my clients is that older buildings built before 1990 are granted “grandfather” status. This is simply not true. Any facility that serves the public including hotels, restaurants, theaters, gas stations, retail stores, beauty salons, to name just a few, must meet the requirements of the ADA regardless of age. Even historic buildings must meet the requirements of the ADA, although to a lesser degree.

One of the reasons that serial plaintiffs are filing ADA lawsuits all over California is because as many as 98% of businesses in California have at least one violation of the ADA that could be the source of a lawsuit. Despite many legislative changes, the serial plaintiffs are still at work filing lawsuits. There is simply only one way to avoid a lawsuit…………conform to the Americans with Disabilities Act (ADA) ONE HUNDRED PERCENT.

Tow Away Sign

2013-12-16T13:00:00.000-08:00

In general, the California Building Code (CBC) incorporates provisions from the Federal Americans with Disabilities Act (ADA) and in many cases it makes them more restrictive. The Tow Away Sign shown above is a case in point.

In California you are required to have a Tow Away Sign at every vehicle entry or at the location of the accessible parking stall. In the Federal ADA, there is no such requirement. Missing Tow Away Signs are one of the quickest ways to get involved in a lawsuit for violations of the Americans with Disabilities Act (ADA). It’s also important to note the ADA Tow Away sign is separate from any other Tow Away Signs on the property. Many of my clients assume their regular Tow Away Signs are the same as the ADA Tow Away Sign and this is simply not true.

In addition to missing signs, the contact information as noted on the sign must be completed. Missing information is the second quickest way to get involved in a lawsuit. Owners are advised to contact the Traffic Enforcement Division of their local Police Department for contact information.

In addition to completing the sign with the required contact information, there are certain other requirements for the sign including overall size of the sign, text height on the sign and mounting height all of which could result in a lawsuit if they do not meet the requirements of the ADA.

Accessible Parking & The Main Entry

2013-12-13T13:00:00.000-08:00

The ADA dictates that accessible parking be as close as possible to the main building entry. The reason for this is obvious………..someone in a wheelchair may not have the strength and ability to travel long distances. After all, you must remember that unless the wheelchair is motorized, as very few are, the disabled person must use their upper body strength to move from Point “A” to Point “B” and that can be quite difficult for those with disabilities.

As I was out running errands, I took this picture of an accessible parking space as it caught my eye for being so far out of the way. This accessible space has numerous issues, but one of the biggest is its location relative to the main entry of the facility that it serves. This space appears to be in a secondary parking lot and will require someone in a wheelchair to transverse probably 150 feet of uneven paving to get to the main entry. The location of this space is a BIG red flag to serial plaintiffs who are looking to file lawsuits against small business owners. This space will catch their eye just as it did mine.

In addition to the location of the parking space, there are several other non-conforming issues. It may be hard to fully appreciate from picture above; however, the parking stall and aisle are too small to meet the requirements of an accessible parking space. In addition, the aisle is on the wrong side of the parking space. Finally, the signage on the pole in front of the accessible space is too low and the emblem of a wheel chair on the pavement is located too far into the accessible space. It should actually be located towards the outer end of the parking accessible space.

Accessible Parking Stall Slope

2013-12-09T14:00:00.000-08:00

One of the biggest issues currently being targeted by the serial plaintiffs is the slope of the accessible parking stall and accompanying accessible aisle. The ADA requires both to be virtually flat. A slight slope for drainage is allowed.

The reason there can be virtually no slope is because loading and unload of a wheelchair could be an issue as the wheelchair could roll away depending on the slope. Another issue and probably the most important is that if there is any slope to the parking stall or accessible aisle, then a wheelchair ramp from a specially designed van will not come in direct and square contact with the ground. As a result, in many cases, the disabled person will not be able to unload into the accessible aisle. For a visual of a specially designed van with a wheelchair ramp, go to www.amsvans.com.

As you can see from the picture on the right, most of the accessible space and accessible aisle are on a steep slope. This will make it very difficult, if not impossible for a disabled person to use this parking stall. To make matters worst, there is a flat area of the parking lot several spaces to the right where the accessible space could be located to meet the requirements of the ADA. I have contacted the building owner and notified them of this issue; however, they have decided not to move the space. Needless to say, this space is a BIG red flag to serial plaintiffs looking to file lawsuits against businesses who don’t meet the requirements of the ADA.

When the ADA was first enacted in the 1990’s, many municipalities were fairly loose in their interpretation of the ADA and allowed a ramp to be located in the accessible aisle as shown in the photograph on the left as a “stop gap” until a curb ramp could be installed at a later date. The thought was to do what they could immediately to provide access to those with disabilities. This practice is no longer allowed and where these ramps still exist, they are subject to a lawsuit as the ADA specifically and accessible shall be virtually flat.

states the accessible stall

If your property has a sloped ramp in the accessible aisle as shown in the photograph, I would immediately make plans to remove it and install an ADA approved curb ramp.