The Americans With Disabilities Act - Protecting Yourself From Unknown Violations

The Federal American with Disabilities Act (Title 42, sections 12101 et. seq. of the United States Code [“ADA” for short]) the California Unruh Act (Civil Code sections 51 – 53) present pitfalls for owners and tenants of commercial properties.

While the Unruh Act protects against discrimination generally, with disabilities among the areas of protection, the ADA covers disabilities specifically.  One area these statutes cover is the denial of access to businesses open to the public.  Violations can include inadequate parking and failure to provide ramps to entry ways for wheelchair bound individuals.  Other violations are less obvious.  Penalties for violations include statutory fines (currently $4,000 per violation under the Unruh Act) and remedial orders.  The ADA is very technical and violations unknown to the property owner and tenant often exist.

Enforcement of the ADA and the Unruh Act can be by private lawsuit, with the owner and tenant both potentially liable.  In addition to statutory damages and remedial orders, a successful plaintiff is entitled to reimbursement of attorneys fees and other legal expenses.  Violations can be costly for the unwary.  A defendant need not intend to violate these statutes to be liable.  Additionally, there is no requirement that a property owner or tenant be given an opportunity to cure a defect, no matter how small, before being sued.  In fact, some law firms and plaintiffs exist for the sole purpose of searching for noncompliant properties.

One way to limit your potential exposure is to obtain an evaluation of your property from a Certified Access Specialist.  A list can be obtain from the ca.gov site for the State of California.  These evaluations are relatively inexpensive and can be performed in a day.  Do not rely on representations of compliance with the law in a purchase and sale agreement or in a lease.  These representations are standard and are often made in the face of unknown violations and will not prevent you from being sued.  If you are unfortunate enough to be sued for violating the ADA and the Unruh Act, hire competent counsel to resolve the matter for you as expeditiously and inexpensively as possible.