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.

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

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/

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.

Despite the passage of SB1186, in an attempt to cure lawsuits, California is ending another year as a hotbed of litigation. This includes the increasing number of lawsuits for SB1186. While many of my professional contacts (architects, attorneys, mostly) have hoped that the passage of SB1186 would decrease the number of lawsuits by making it difficult for attorneys to send out demand letters — this has proved to be the opposite. The lowered amount for damages seems to have only provided more incentive for serial litigants to sue on an even broader basis, to retain the level of income they are accustomed to.

Nonetheless, the fact remains, the only real avoidance of a lawsuit is to be compliant. A tape measure does not lie. It does not vote for Democrats or Republicans. Should someone sue you for not having proper access, having proper access will go a long way to saying “Hello, I have proper access. You are wrong to bring me to suit.” In fact, having compliant access is the only sure fire way to win. Legislation like SB1186 is just a band-aid on a festering issue.

Keep in mind though, SB1186 is, after all, only California law. The issue of ADA lawsuits is proving more widespread than just California.

Some national professional groups have begun to notice that going to courts isn’t worth the hassle. Insurance could help, as a band-aid, but if you are sued too many times for being non-compliant, they will drop you. Compliant access is the only real long term solution. ADA issues for Commercial Space">This property management magazine speaks very broadly on the issue… probably because state laws differ on this issue, especially for condominium spaces…. so national groups must rely on local expertise.

As issues of compliance become more noticed by professional property managers, so too are they more noticed by potential plaintiffs. Here’s an article about a possible serial litigant in Missouri.

If anything, signs point to ADA compliance and lawsuits mushrooming even further in 2013. Any thoughts on this?

This will be the last article I post this year. I hope you all have a very happy, access compliant holiday, whatever state you are in.

News and awareness of these ADA lawsuit situations has been developing a long time.

Here are some of the many links on ADA lawsuit news.

San Francisco tries to stop ADA lawsuits by offering city paid inspections.

Second article about the program in SF to help businesses Here.

The Department of Justice did a survey of Jacksonville, FL and found many different violations. The City of Jacksonville, FL is being asked to fix these violations. At least they have a choice to fix it, rather than having a lawsuit bring them to court.

The city of Baltimore upgrades their curb cuts but lacks the money to complete a path of travel. Curb cuts by themselves leaves the disabled stranded.

Martinez’ widely publicized lawsuit alleges he and his wife were stranded for 40 minutes on Small World just inside the last tunnel when the attraction malfunctioned. He claims that other, non-disabled guests were removed but that he and his wife (“Buchanan”) were not provided “constructive assistance from any emergency or medical professionals, or Disney employees.” While a female cast member approached their boat, Martinez claims he “felt his blood pressure rising, explained to the female employee that he was having a panic attack, requested medical attention, and insisted that he needed to exit the ride immediately” but without success. Martinez claims that despite telling another employee that he needed medical attention, he remained on Small World, “experiencing Dysreflexia” for another 20 to 25 minutes. Martinez claims he repeatedly requested emergency medical attention but Disney did not contact paramedics until after he exited Small World.

You can read the rest here