Have you or your tenants been caught up in multiple Americans with Disabilities Act (ADA) lawsuits? The ADA lawsuits are on the rise in the first quarter of 2023, so be proactive and avoid these costly lawsuits. If you are caught up in an ADA lawsuit, we highly suggest you work with a qualified ADA team consisting of a CASp inspector, ADA Designer/Contractor and expert ADA attorney. The purpose of working with a team versus hiring each principle independently is within the details.
Example: you hire each principle independently: your CASp inspector does not speak with your ADA designer, The contractor does not speak with the CASp inspector or the designer, so the chances of obtaining the best compliance outcome is limited, versus working with a team that works together on a daily basis.
City Permit Required
It is always best to obtain a city permit for a variety of reasons; First of all, it is required. If you start construction without a permit, the city or the local authority may stop you in the middle of your project until you provide proper documentation such as a formal design & plans. Also, the permit documented with the city now provides a threshold date of when the property was brought into compliance with proper documentation that has significant value.
The most common mistake owners or tenants make is they hand the actual lawsuit to a contractor and request the contractor make the corrections outlined within the allegations. Oftentimes, the owner may start down the correct path by acquiring a CASp report, but not hiring a complete team. Handing the CASp report to a contractor without a design that meets current federal and CA codes is a mistake. The CASp report is not a design and should not be confused as one. CASp inspectors are not designers, contractors, engineers or attorneys, but often provide information that may be misleading. Some CASp reports have “recommendations” which are typically incorrect and send the owner down the wrong path, especially if they hand the report to a contractor and request they make corrections according to the report.
Most lawsuits do not list all of the corrections that are actually necessary for compliance. There is a reason for this, they want to leave the door open for multiple lawsuits. In most cases, the party filing the lawsuit (Plaintiff) will file a lawsuit with a few allegations such as there is not an ADA parking stall, stripping is incorrect or the signage is missing. In reality, there may be 10 to 15 corrections outlined in a CASp report If the owner were to obtain one. ACR always suggests that you make the corrections according to the CASp report and the formal design and not the allegations within the lawsuit. This way, you are sure to make all the corrections and not be set up for the second and third lawsuit by only performing a few within the lawsuit.
Keep in mind, the law requires a complete accessible route – not just a parking stall and signage. Until the accessible route is corrected properly with a formal design, the city permits, you may be open to multiple lawsuits. The following is another example: The owner is sued for not having an ADA parking stall. The owner provides striping and signage and settles the lawsuit. Now, because the owner did not follow a correct path, the second lawsuit comes and alleges the parking stall you just spent $5K striping is actually in the wrong location. Now, the owner pays the contractor another $5K to relocate the parking stall and settles the lawsuit. Then the third lawsuit comes and claims the curb ramp is missing, along with the detectable warning domes. So now, the curb ramp will not fit where the newly relocated parking stall is and has to be relocated again. This can continue over and over until the owner follows a correct path on the complete accessible route, including a city path of travel for disabled people who do not drive but navigate by public transportation. Additionally, if there are multiple buildings on a parcel there must be a path of travel connecting all of the buildings.
Lastly, at least one accessible route within the boundary of the site shall be provided from public transportation stops, accessible parking, and accessible passenger loading zones and public streets or sidewalks to the accessible building entrance they serve. The accessible route shall, to the maximum extent feasible, coincide with the route for the general public. Do not be confused when a CASp inspector, attorney, contractor states that you may deviate from the code because of “technically infeasible” items and that you can deviate from the code and use a sign or a door buzzer. The code states that if you cannot meet compliance, you must do the next best thing possible and local authority must approve it. A CASp inspector, attorney or contractor cannot give you approval to deviate from the code so be careful. So, follow these steps: CASp report, ADA designer, ADA contractor, city permit, CASp reinspection to confirm the work has been performed correctly since most contractors perform ADA incorrectly thus, multiple lawsuits. In the event of an ADA lawsuit, hire a qualified ADA team.
Anthony “Tony” C. Guichard is the President / Founder of both ACR Concrete & Asphalt Construction, Inc & ACR ADA Design & Build. He personally holds licenses; A, B, C-12, C-8 & C-32. Both companies have significant experience addressing complex access compliance issues in the built and as-built environment. Tony is committed to improving access for individuals with disabilities by providing information, education, and access compliance solutions to commercial and rental property owners throughout the State of California. For more information, a field investigation and/or CASp inspection and reports call 714-377-9569 or 310-773-7900 or at www.acrconcreteinc.com.