3 Steps to follow after Receiving an ADA Compliance Letter

| Saturday, March 26th, 2011 | Comments Off on 3 Steps to follow after Receiving an ADA Compliance Letter

What do you do when you receive an ADA compliance letter? The general gist is pretty standard:

  • Here are some items that are out of compliance
  • These laws say you are in violation
  • Pay our firm money to settle or we will take you to court

This is a nightmare situation for a small business owner.  You never have the resources to fight this, nor the time to look deeply into it yourself.  You might have heard a few things about this on the news or from your friends.  But you’re not an expert. This situation is bound to give you endless nights tossing and turning, feelings of helplessness, anger and disbelief.  Unfortunately, because of your limited resources, as a small business, you are an easy target for litigants.  So what should you do?

First off, I must offer a disclaimer.

I am not an attorney.

I cannot give you legal advice.  For legal advice, contact an attorney (for attorney info see below at step 1).

The most I can offer here, is our experience dealing with our client’s situations.

This article is meant to help guide you so you can make the right decisions.

Instead of making costly decisions.

What do we see our clients do?

 

The Situation:

An ADA compliance notice should list areas of deficiency in your facility.  The exact details of the violations are always changing so these letters change too.  But in general they follow the three bullet points above.

In the past, such notices were a cookie-cutter list, some of which were invalid and would get thrown out in court. The few items that stuck would prompt you to settle because even if you fought it, those items are legitimate.  In the eyes of the law, really, the only eyes that do count, being in violation with the requirements mean that you need to pay the settlement and then pay both their attorney and your attorney.

Nowadays, the specific tactics have changed as the laws have changed.  Rather than threatening you with a list, half of which could get thrown out, making them look bad, savvier attorneys may threaten you with one or two very simple but legitimate issues.  Then you’re 100% wrong, and you HAVE TO FIX IT AND PAY.

So before we get to the steps, let’s address two scenarios.  What’s the worst that could happen?

The worst that will come from not following these three steps properly is that you will have to fight and lose a lawsuit and then pay the settlement.

Being sued once, if you didn’t learn your lesson the first time, there’s a good chance you will get sued again.  In fact, you could get sued for the very same issue by someone else while you’re still dealing with your first lawsuit.

This has happened to at least one of our previous clients.  They didn’t just refuse our service after asking about what we do during the initial lawsuit.  (They felt that the lawsuit was unjustified because in their words: “We were sure we didn’t do anything wrong.”) They were so emotionally distraught that just talking about the issue caused them to vent at us as though we brought it on them. They didn’t just not hire us, they also refused to hire ANYONE. In fact they refused to DO ANYTHING, as though their stubbornness would make the situation go away. Unfortunately, it did not.

It took them two lawsuits which they both settled before they hired us.

In a different situation, a quasi-government entity had me do an ADA compliance study. The laws yielded them some results which we presented. For what ever reason, this entity decided that an alternate construction was the most cost effective solution, despite our best efforts to warn them that this “solution” broke other laws.

They then got sued by someone else for their brand new construction.

Don’t be stubborn. Compliance is compliance. If you don’t hire us at least follow these steps, get an attorney and then get an ADA expert to study your site.

The Absolute BEST thing you can do to avoid such a letter is to be compliant.  Since the savvier attorneys who litigate such causes have been sending out ADA experts to measure and document violations, your best bet is to become ADA compliant.  You can do this a variety of ways.  You could hire ADA consultants like ourselves, or you could try and do it yourself.  Both options are presented here:

ADA Consultation Guide: What we do and where you can go to learn

Barring that, if you do have such a letter, let me emphasize a few things.

There are three steps to take.

Only three.   Sounds simple enough?  READ ON!

 

Step 1. The most important thing is to answer the letter.

I cannot emphasize this enough.

If you ignore the letter, in 90 days you will probably be sued in court.  Do NOT throw away the letter. Throwing the letter away or ignoring it, compounds the problem, so that not only did you violate the ADA (thereby committing under the Unruh Civil Rights Act, making your violations an act of discrimination) but you also don’t show good faith.  Intention does not matter.  Your recorded, documented actions do matter.  They matter a great deal.  Ignorance is not an excuse, it’s nearly an admission that you did something wrong, by not being responsible enough to do what you should have done in the first place.

You must be a responsible.

Doing otherwise only weakens your position.

So how do you answer it?  You can write the letter yourself, or you can hire an ADA experienced attorney.  We would recommend the individuals mentioned here:

Frank Chen

Kevin Sawkins

Both of these attorneys are experienced with handling ADA cases.

Even if you write the letter yourself, we still recommend that you hire an ADA consultant.  An attorney by the very nature of their trade can only help you AFTER YOU ARE SUED.  To prevent being sued in the first place, it logically follows that you should become ADA compliant.

 

Step 2. Get an ADA Compliance Survey

This step seems like a no-brainer.  But you wouldn’t believe the number of people who email or call and insist that their store is compliant because we have wheelchair users come in all the time!

This claim is the equivalent to a business addressing a lawsuit from one of their employees by claiming that their business is compliant because the other employees did not also sue.  This isn’t a defensible position as people don’t have to sue if they don’t want to.  Rather than argue with this excuse, business owners must understand, like it or not, if you open a business, you must follow the letter of the law.

If anything, getting an ADA expert who look at your site to verify the claims is one possible way to get around the problem.  Remember, they are suing you, so the burden of proof is on their side.

You must get the facts.  ADA violations are very dependent on specific measurements.  After all it’s the specific measurements which have gotten tens of thousands of small businesses in trouble.

If this litigant is new to this field, they could have made some errors somewhere, such as claiming that van parking cannot be shared with other access aisles.  We’ve helped attorneys with this.  The intermix of California Building Code and ADA Access Guidelines with all the continuing discussion can be very confusing, even to professionals.  Many websites contain faulty information, or outdated information as do many ADA guidebooks.  A plaintiff new to this field might try to sue you for something that you aren’t required to do.

So getting an expert to verify the claims and then having your attorney talk to their attorney is the best way to resolve this issue.

What kind of expert should you get?  The highest license available on ADA expertise (in fact the only one) is called CASp.  You can read about it here.

ADA Compliance: Why CASp?

The (inexpensive) Cost of ADA Compliance

At this point you should understand that step 2 by itself won’t solve the issue.  You MUST FIX THE VIOLATIONS.  No survey, not even a CASp inspection will solve ADA violations by itself.  You must actively address the issues.  Which brings us to Step 3.

 

Step 3. Remediate the ADA Violations

So now you have the ADA violations in hand.  What then?  When following up with clients, we are always astounded to hear that they did nothing with our report.  Or they gave it to a contractor who took the report away and never returned.  Maybe I should stop being so surprised.

Ideally, this step should have occurred first.

Doing Step 3 before any notice is received will help PREVENT LAWSUITS IN THE FIRST PLACE.

Most lawsuits that happen ask for settlement money, looking for the simplest violations.  These are the most egregious violations since not repairing items that could be easily dealt with shows negligence on the part of ignorant businesses.  The best thing to do then, is to remove that ignorance and do your best to comply with the law.

This doesn’t mean you have to fix everything.  Many of the items are of small expensive.

For instance, insulating pipes could cost as little as 30 dollars.  But buying the proper insulation and not addressing the hot water pipes even if you wrapped the drain, is a problem.  I’ve seen pipes wrapped in duct tape and packing foam.  Is that insulating?  After a while, these things get dirty, get torn off and look awful.  Is that really a solution in the long run?  (Incidentally, Here is a website that sells pipe insulation materials: Plumberex, ADA compliant Solutions.  We met them at a disabilities trade-show last year.)

But insulation as duct tape and foam… that’s something for the courts to decide.  Duct tape may save you 30 dollars, perhaps, but it is grounds for a potential lawsuit.

But wait, why are you trying to save $30 when a lawsuit will cost you thousands?  Aren’t you complying to avoid a lawsuit in the first place?

Best to do is to understand what the law is, and then exceed the letter of the law.

 

ADA Compliance Takeaway

So okay, these steps are long enough for a blog article.

Step 3 can take some time and effort.  If you don’t have sole responsibility for your parking lot, you may have to talk with your property manager.  I cover those issues above in a link, but I’ll link it again: The (inexpensive) Cost of ADA Compliance

Compliance can take time.  If you are sued, your number one priority should be to hire an attorney, or at least talk to a knowledgeable one.  We work with attorneys, give us a call we can introduce you to some experienced attorneys.

But the urgency of being in a lawsuit situation aside,  obviously education is the way to understand your legal liability.  Step 3 is the only step that will prevent future lawsuits.

To tell you the truth, it’s often too late to do anything but settle after you are sued.  A violation is in fact a violation. Preventive measures can only happen BEFORE a lawsuit.

Obviously then, education is the key.

Compliance is the solution.

But wait.  Compliance requires special knowledge.  Doing your taxes isn’t that easy, and doing a business’s taxes requires quite a bit of commitment upfront and on-going.

So why not hire a good CPA?

It takes architects about 3 months to learn all about the ADA, the different laws and so on.  The problem isn’t the specific building code (although all those numbers can be confusing), it’s all the legality that surrounds it.  And of course, they also need real world experience.

For someone with no experience in this field, it will take them about 6 months before they become able to inspect properties on their own.  At least a year before they can begin to advise people on what to do.  So why wait a year and spend all that effort to save several hundred dollars? Why not hire a good and experienced ADA expert?

Best to get that CASP report right away.

 

Thoughts?  Questions?  Comment below for feedback, or for more immediate and confidential assistance, call 866 982 3212 or email us at help@accesssolutionllc.com

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