Legal Briefs

Court's ADA Ruling Reminds Property Owners and Managers About Access Requirements

Congress enacted the Americans with Disabilities Act as a comprehensive law designed to remedy discrimination — whether it is intentional or not — against those with disabilities in public and commercial facilities.

The ADA requires continued efforts over time to remove access barriers to the extent that solutions are readily achievable. The law does not require that all places subject to the act — including public places such as stores and restaurants — immediately undertake alterations, but as they are done, detailed access requirements must be met.

Courts continue to monitor these issues; a recent class- action lawsuit decided in federal district court called for one retailer to improve its compliance.

ADA Specifications Title III of the ADA provides that “No individual shall be discriminated against on the basis of disability” and defines discrimination as a failure to remove “barriers ... where such removal is readily achievable.”

Barriers include curbs, narrow or revolving doors, tall drinking fountains, public telephones, or automated teller machines, and fire alarms without flashing lights.

The ADA defines readily achievable as “easily accomplishable and able to be carried out without much difficulty or expense.” However, a property is not subject to the act if the property owner can illustrate that alterations fundamentally would change the business or the nature of the goods or services provided.

The ADA lists the following factors to consider in determining whether or not barrier removal is readily achievable: the nature and cost of the action; the overall financial impact on facility operation; the overall financial resources of the facility owner and the number of employees; and the type of operation involved.

Where renovations or alterations have been undertaken in public places, however, the ADA imposes more-stringent access requirements, set forth in the ADA Accessibility Guidelines for Buildings and Facilities. These guidelines mandate that altered or renovated areas must be fully accessible to people with disabilities, including those in wheelchairs.

For example, changes in elevation of more than a half-inch within a floor level would trigger requirements for a ramp, curb ramp, elevator, or platform. The regulations governing restrooms are highly detailed and include requirements for toilet stall doors, signage, door hardware, and soap dispensers. Public telephones must be placed at a maximum height of 48 inches; the same height requirement applies to self-service computer terminals.

If a property is found to violate ADA requirements, courts may order compensatory damages and the Justice Department may obtain civil penalties from $50,000 for a first offense to $100,000 for subsequent offenses.

Macy's on Trial In the first class-action lawsuit to go to trial under the ADA, Lieber vs. Macy's West, Inc., the U.S. District Court for the Northern District of California provided a detailed road map for property owners seeking to avoid ADA liability. While this case concerns a retailer, the lessons learned are of interest to owners and managers of all commercial property types.

In Lieber, a group of people with disabilities alleged that Macy's Union Square department store in San Francisco contained a number of access barriers that violated ADA requirements. Specifically, the alleged barriers included inaccessible merchandise sales counters, fitting rooms, and restrooms and blocked aisles. The case focused in particular on the extent to which Macy's provided enough clearance between display units for those with disabilities to access merchandise.

The court found that large portions of the Macy's Union Square complex had been altered or renovated after the ADA was enacted and were subject to ADA standards.

The court examined the moveable merchandise display units, which it found to be configured to constrict or block access in many areas of the store. It found that rearranging tables and display racks to provide more space would be a readily achievable action. At the same time, the court noted that reconfiguring movable structures is not readily achievable if it results in a significant loss of selling or service space.

In this case, Macy's appeared to compound its problems by not having considered what might be readily achievable to minimize access barriers within its store. Macy's also had not attempted to reconfigure or consider alternatives to improve access in any way, which the court found to violate ADA requirements.

The court ordered Macy's to establish and implement a training program regarding merchandise placement to ensure that access is maximized; to designate an individual responsible for the ongoing oversight of the display process; and to create a plan for effective customer assistance for those with disabilities. The court further ordered full compliance with all ADA accessibility guidelines in areas subject to new construction or alterations standards, as well as signage throughout the store identifying the location of accessible features such as elevators, fitting rooms, restrooms, and telephones.

Lessons Learned This ruling serves as a reminder to property owners and managers to analyze their space to determine whether access barriers for the disabled exist. Architects or engineers can be retained to analyze space, but at a minimum, a common-sense review of the space and potential obstacles or barriers should be considered. If barriers are found, the next level of analysis is whether removal of such barriers is readily achievable.

Before any property owner or manager is found to violate ADA requirements, however, the party alleging discrimination has the burden of establishing that barriers exist and proposing modifications to remove them.

Finally, property owners and managers subject to ADA requirements should remember that when any renovation or remodeling is done, the architect must comply with and incorporate the detailed requirements into the plans. Once those requirements are triggered, failure to comply may mean that the work needs to be redone — likely at even greater expense.

Having a plan in place for minimizing barriers to access and complying with the more-stringent access requirements if renovations are done is the road that the Lieber court suggests to avoid liability under ADA requirements.

For more information on ADA requirements, visit the Justice Department's Web site at http://www.usdoj.gov/crt/ada/ adahom1.htm.

Carol C. Hongiberg, JD

Carol C. Honigberg, JD, is a partner in the real estate group at Reed, Smith, Hazel, & Thomas LLP in Falls Church, Va. Contact her at (703) 641-4220 or chonigberg@reedsmith.com.  The discussion of legal issues in this column is for informational purposes only. Results may vary depending on state laws and individual circumstances.

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