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Posted by on Feb 19, 2018 in Government, Health, Law, Politics | 0 comments

Americans With Disability Act (ADA)

Last week the House of Representatives passed a new law which will fundamentally change the ADA law that has been on the books since 1990. The new law will allow businesses time to remedy the ADA deficiencies before being sued. This Newsweek article explains the new law more completely. The idea behind the new law is to prohibit frivolous and expensive lawsuits be money hungry unscrupulous attorneys.

Having been heavily involved in this issue for the past 30 years because I am a full-time wheelchair user and when we moved to this town it had virtually no handicap accessible buildings. I was an early advocate of getting buildings ADA compliant and fairly quickly buildings installed ramps which made it easy to roll into the premises. There was very little resistance to making these modifications even by the smallest of small businesses. But even here some compromises were needed as some properties were too small to build a ramp that was not too steep and thus needing to start the ramp on property owned by someone else. Talk and cajoling usually ended up with the right solution.

The crux of the problem with the ADA and small businesses comes about with the requirement that wheelchair accessible bathrooms be available. As any homeowner knows when plumbing is involved, nothing is cheap. This is where small businesses and the landlords who owned the buildings started to rebel. There are some very legitimate concerns by small businesses in this area of the law, yet anyone who is handicapped knows that when nature calls there is a small margin for error between relief and an embarrassing “accident”.

This is where I have gotten involved as kind of a mediator between the disabled community and small businesses trying to find practical solutions which do not involve frivolous spending. Initially there is resistance on both sides. Some Disability advocates are immune to the idea of compromise. Their thinking is with the passage of the ADA, we won and in American culture it’s “winner takes all”. Most landlords are just as stubborn and are quick to point out how un-American it is for the government to require them to spend their hard earned dollars.

The idea that lawyers can make big bucks on suing for ADA compliance is ridiculous. The dollars involved are too small to make it an attractive target. Disability Advocates rarely have the funds to make it worthwhile for the lawyer to pursue the case on a fee basis and the potential lawsuit awards are too small to make contingent fee cases profitable. Yet, I am sure some lawyer in some part of the country has made money on a contingent fee basis or by collecting lawsuit settlements.

Technically, ADA compliance does not have to occur until the use of the building or facility inside materially changes its use. Sometimes landlords went to ridiculous lengths to avoid compliance. In one case a restaurant wanted to give up its lease and an optometrist wanted to take over the space. To avoid putting in a handicap restroom, the landlord kept the restaurant counter where sandwiches were served and the rest of the space was for the optometrist. It was a ridiculous and expensive solution to get around the law since technically it was still a restaurant.

Disability Advocates hired a lawyer to force the landlord to comply since the facility use had really changed and this was a cute but unallowable way to get around the law. The Attorney (he was also my personal attorney) brought me into the case to find a practical solution. The building was over 150 feet long and provided space to 8 different businesses. The practical solution was at the back of the building was 150 feet storage space for the various businesses that was 12 feet wide. It turned out it was cheaper for the landlord to clean out the storage space and install a hallway with two handicap accessible bathrooms that could serve all 8 businesses than to continue to run a sandwich counter by himself and lose rent from the smaller optometrist space.

My experience is the threat of a lawsuit is important to provide incentives for compromise. That is what the House took away yesterday. Providing time for a business to comply with ADA is a good idea but after working with a dozen different landlords, the lawsuit threat has a way of getting them to focus on the problem, otherwise there are always more important problems to deal with. I am sure that with this new law, compliance with ADA even after almost 30 years will slow down. However, this new bill will surely die in the Senate where it’s chances to gain 60 votes is virtually zero. My analysis is that the Republicans who sponsored and voted for this bill realize that it will never become the law of the land but are doing a Kabuki Dance to show how much they love small business.

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