ADA compliance

Real-life examples of compliance — and noncompliance — with the Americans with Disabilities Act were spotlighted during the SPECS session, “Retail and the ADA: The Good, The Bad and The Ugly.”

Brad Gaskins, an architect with expertise in the ADA and national building codes and a self-proclaimed “ADA geek,” told SPECS attendees that one of their biggest exposures is falling victim to so-called Google lawsuits. Scammers drive by several store locations of a chain or perform digital drive-bys in the comfort of their own homes on Google Street View.

“They’ll look at all the addresses of a convenience store chain and count the violations they can spot,” said Gaskins, principal and COO of The McIntosh Group. “Counting the number of handicapped parking spaces is an easy one for them.”

Most of these drive-by suits are filed by serial litigants working with common law firms that have made a cottage industry out of such filings. Plaintiffs are well-acquainted with ADA law and almost always seek attorneys’ fees, expert witness fees and other litigation costs.

Once plaintiffs spot a few legitimate violations, they usually list other common violations in the filing.

“A suit filed against one of our clients claimed 33 violations, of which just three were valid,” Gaskins said. “Another listed 98 items and only five were valid.”

He warned retailers to be proactive in avoiding and fighting these suits, since successful ones have far-reaching financial implications.

A lawsuit and follow-up consent decree levied by the Department of Justice against QuikTrip for gas-pump inaccessibility required the convenience store chain to make code-compliant modifications at all 550 of its locations. The DOJ also required QuikTrip to adopt an ADA-compliant service animal policy, pay a maximum civil penalty of $55,000 and establish a $1.5 million fund to compensate people who experienced disability-based discrimination at their stores.

The top three items to check at all locations: accessible routes for handicapped customers, sufficient handicapped parking spaces and toilet violations, such as handicapped-accessible stalls and grab bars.

Lawsuits

Gaskins also discussed the rising tide of ADA lawsuits. From Jan. 1, 2017, through April 30, 2017, 2,629 lawsuits were filed in federal court, which is 412 more than during the same period from the year before. The costs of litigation, he said, are time, energy, fines and damages and legal costs.

Gaskins warned retailers that it was their responsibility to keep their locations within code.

“Don’t count on architects to get it right,” he said. “Make sure they know the regulations.”

Gaskins explained that local building officials are not responsible for interpreting or enforcing the ADA. They only enforce state and local accessibility codes or laws.

“There is no process by which to obtain a variance from the requirements of these federal acts, as with typical local and state building codes,” Gaskins said.

He urged the audience to take a proactive approach to ADA compliance. As to what retailers can do to become more accessible, he recommended the following:

• Consider implementing an ADA compliance element into the new construction and remodel process;


• Incorporate ADA compliance into the new store opening/remodel checklist;


• Train staff so that ADA compliance becomes a core business practice;


• Be proactive — keep current on proposed changes to the ADA guidelines; and


• Seek assistance from an accessibility subject matter expert.

“Stand up to frivolous lawsuits,” he said.