The New York Times has noted the rise of ADA lawsuits for blind shoppers on websites.

http://www.bizjournals.com/phoenix/morning_call/2013/03/online-retailers-face-ada-lawsuits.html

Web accessibility is particularly easy to discover, but difficult to for the layperson to understand where to begin.

I don’t mean to get too into the topic here, but there are some easy to note violations:

• Use of flash animation, especially as an integral part of the site
• Images that lack title attributes
• links that lack title attributes
• Images used to convey textual information

If you are concerned about the accessibility of your websites, contact us with any questions at help@ytaccess.com or 866 982 3212.

SB 1186, which has far reaching changes for the ADA is an attempt to help businesses be more compliant with the ADA without hurting them.

One of the requirements of SB 1186 is that as of July 1st, 2013, leases on commercial property will need to state whether or not a CASp inspection was performed on the site.

Here are some articles on the subject:

• http://www.natlawreview.com/article/new-disability-access-law-imposes-notification-requirements-commercial-leases
  
• http://cbpa.com/sb-1186-provisions-ada-lawsuit-reform

Additionally, cities are now facing pressure to get their own CASp licensed personnel to help them curb their own liability.

Here are articles on this subject:

• http://www.calaverasenterprise.com/news/article_6209a7c4-ac2e-11e2-82b7-001a4bcf887a.html
  
• http://www.reedleyexponent.com/articles/2013/04/04/news/doc515b6b8319870320624177.txt

While local ordinances are only required to enforce state law (ADA is Federal law and out of their jurisdiction), a CASp educated official should at least let the city be more aware of when they are putting their businesses in jeopardy when they enforce local ordinances which may violate the ADA.  Often, government buildings also have plenty of ADA violations (http://blog.al.com/breaking/2013/03/madison_county_courthouse_sett.html) At most though, your local ordinance will only urge you to get a CASp inspection.

CASp inspections will not only help you become compliant, they will also offer legal benefits to your site as protection in the case of future lawsuits.  We posted an article on this subject last year, nearly a year ago: CASp and SB 1186.

So what does this all mean?  The process for occupancy is slowly including CASp inspections as part of the normal routine.  If you are a property manager or a commercial real estate agent, you will be urged to get a CASp inspection to protect your site.  If you have or have not, you need to alert your prospective and renewing tenants!  Those businesses need to be aware of what they are getting into.  If you haven’t gotten a CASp inspection, this will reflect on your how you conduct your business — if you are concerned about compliancy and the well being of your tenants or not.

If you are a prospective tenant or a renewing tenant you should urge your landlord to get this protection for you and for him.  It’s a one time charge.  You both can enjoy its legal benefits indefinitely.

Any questions or comments?  Contact us at help@ytaccess.com or call us at 866 982 3212.

Many of the ADA lawsuits are filed by serial litigants.  There are some litigants, however, who do not seek financial gain.  Stakeholders often villianize ADA lawsuit plaintiffs, but its difficult to villianize those who don’t make money from the suit.

A former Ms. Wheelchair South Dakota is suing eight Sioux Falls businesses for making it too difficult for people with disabilities to park, shop, dine, gamble or use a restroom.

Kristina Allen, 33, wants a judge to force the businesses to adhere to the accessibility standards of the Americans With Disabilities Act of 1992.

The lawsuits, filed over several days last week in the U.S. District of South Dakota, target Jacky’s Restaurant and Bakery, Boonies Bar and Barbeque, Nutty’s Pub and Grill, Black Sheep Coffee, Sixth Street Market, Golden Harvest Chinese Restaurant, The Mint Casino and Crown Casino.

Allen claims that each of the businesses discriminate against people in wheelchairs by denying equal access. She has not asked for financial damages, but wants a federal judge to order each of the businesses to renovate to come into compliance with the law.

http://www.argusleader.com/article/20130430/UPDATES/130430033/Former-Ms-Wheelchair-S-D-suing-eight-businesses-not-being-ADA-compliant

ATM lawsuits have happened before, but not a class action suit.

If you have an ATM at your site, you are liable for it, even if it is not yours.  Quoted below is some requirements of ATMs

Speech OutputMachines shall be speech enabled. Operating instructions and orientation, visible transaction prompts, user input verification, error messages and all displayed information for full use shall be accessible to and independently usable by individuals with vision impairments. Speech shall be delivered through a mechanism that is readily available to all users, including but not limited to, an industry standard connector or a telephone handset. Speech shall be recorded or digitized human, or synthesized. 2010 ADA – 707.5

Input Controls

At least one tactilely discernible input control shall be provided for each function. Where provided, key surfaces not on active areas of display screens shall be raised above surrounding surfaces. Where membrane keys are the only method of input, each shall be tactilely discernable from surrounding surfaces and adjacent keys. 2010 ADA – 707.6.1

Numeric Keypads

Numeric keys shall be arranged in a 12-key ascending or descending telephone keypad layout. The number five key shall be tactilely distinct from the other keys. 2010 ADA – 707.6.2

Display Screen

The display screen shall be visible from a point located 40 inches (1015 mm) above the center of the clear floor space in front of the machine. Characters displayed on the screen shall be in a sans serif font. Characters shall be 3/16 inch (4.8 mm) high minimum, based on the uppercase letter “I.” Characters shall contrast with their background with either light characters on a dark background or dark characters on a light background. 2010 ADA – 707.7.1, 707.7.2

Braille Instructions

Braille instructions for initiating the speech mode shall be provided.

We can add to this that there are height requirements for the device controls, the screen as well as clear floor space requirements to the device and around it depending on whether it is located at the end of an aisle, by a counter, in an aisle or in an alcove.  Of course, local ordinances will vary but ADA requirements are universal throughout the United States!

The original article can be found here: http://www.lexology.com/library/detail.aspx?g=89484d78-382c-4230-823b-282e1f607ada

An additional article on the subject can be found here: http://www.mondaq.com/unitedstates/x/229300/Financial+Services/ATM+Regulations+Under+The+ADA+Replace+Fee+Disclosure+Decals+As+The+New+Trend+In+Lawsuits+Against+Financial+Institutions

This is how widespread ADA compliance problems are:

Even an attorney who regularly files lawsuits regarding ADA violations at businesses has violations at his site.  Strange thing, he claims that this suit itself is frivolous but faces the very real fact that his visitors can only see him if they use the stairs.

The only real defense of an ADA lawsuit is to get the law on your side.

CASp inspections can help you with this as they do carry legal benefits.  More information on CASp?  Read SB 1186.

Original Articles about this attorney being sued?  See below:

• http://fox40.com/2013/03/08/ada-lawyer-facing-his-own-ada-violation-lawsuit/
• http://www.recordnet.com/apps/pbcs.dll/article?AID=/20130308/A_NEWS/303080322/-1/A_NEWS02
• http://www.lodinews.com/news/article_0f529012-171a-5742-b40c-aa55bb885169.html

There is a bill in the CA legislation, AB 223, that will introduce a cure period of 30-60 days for violations.

This does not get around the fact that issues that need to be fixed need to be fixed, even in the case of a lawsuit.  Anyone who understands the nature of disabled access violations understands that this bill will only impact items that are “Readily Achievable”, meaning items that are easy to fix.

For more complex items, such as parking striping or re-arranging  a restroom, costs can increase to the point of needing the approval of the local building authority.  Depending on where you are and how much traffic those departments get, 30-60 days may not be enough.

This means that as a stakeholder of property, you might as well fix these items immediately.

Better yet, why not get a CASp inspection?  This way you can have a timeframe on the order of YEARS to fix the items that need more attention.  AB 223 sounds like it offers relief to the layman, but 30-60 days is not enough.

This doesn’t even take into account that CASp will protect a site from future lawsuits FOREVER.  To read more about CASp go here: SB 1186 or contact us (866 982 3212 or help@ytaccess.com)

To read the original article on AB 223 go here: http://www.foxandhoundsdaily.com/2013/02/ada-lawsuits-and-the-public-sector/

* Continually provide ready-made hot and cold gluten- and allergen-free food options in its dining hall food lines;

* Develop individualized meal plans for students with food allergies, and allow those students to pre-order allergen free meals, that can be made available at the university’s dining halls in Cambridge and Boston;

* Provide a dedicated space in its main dining hall to store and prepare gluten-free and allergen-free foods and to avoid cross-contamination;

Read more here:

From: http://pjmedia.com/jchristianadams/2013/01/02/holder-justice-department-ensures-hot-gluten-free-food-on-campus/

http://overlawyered.com/2013/01/feds-rewrite-college-cafeteria-menus-ada/

We have heard a wide variety of opinions from attorneys on what is a reasonable accommodation. I think it safe to say though, that aa drive through is not an accessible route for someone who cannot get service in any other way.

http://www.smdailyjournal.com/article_preview.php?id=1760625&title=Woman%20suing%20Taco%20Bell%20for%20ADA%20issues

Not all issues are this glaring though. Many of them can be much subtler, needing an experienced inspector who knows what to look for.

There has been a sharp increase in the number of ADA lawsuits in the New Orleans area.

To read more about it, you can turn to this article.

http://legalnewsline.com/in-the-spotlight/238513-ada-lawsuits-see-increase-in-new-orleans-area

Happy new years!

To open the new years, we have some good news for property owners seeking to defend against frivolous ADA lawsuits. The trick in defending such cases is to prove that the alleged violations are in fact frivolous… or in this case, not readily achievable.

Here are two articles about this very issue:

http://legalnewsline.com/news/238477-calif-sc-awards-store-owner-attorney-fees-in-disabilities-lawsuit

http://www.jdsupra.com/legalnews/prevailing-property-owners-may-recover-a-81441/

Part of the reason to get a good attorney is that such an attorney will be able to present the case in this light. But unless the attorney can do the inspection themself, and unless the attorney is well versed in ADA and State building codes, you will need an expert witness to inspect the property and present the case.