Dispelling the most common Myths of the ADA and Your Responsibilities to Comply
By Anthony C. Guichard, President, ACR Concrete & Asphalt Construction, Inc.
ADA lawsuits are on the rise for a variety of reasons. Mostly because owners and tenants with properties or businesses that are open to the public are not addressing and making corrections properly.
The most common reason we multiple ADA lawsuits filed against owners of property or businesses is due to not following certain guidelines. Most defendants simply contact an asphalt contractor and have them perform the corrections outlined in the lawsuit. This is a critical mistake since asphalt contractors do not necessarily have the expertise to ensure compliance under ADA rules.
Typically, a lawsuit only calls out a few corrections when the CASp report may identify upwards of ten (or more) corrections. Only performing the three or so corrections outlined in the lawsuit and not addressing the remaining corrections within the CASp inspection report leaves the owner or tenant vulnerable for the remaining corrections in the form of a second or third lawsuit. A CASp inspection report identifies violations of the applicable accessibility standards, , and a schedule for completion of accessibility improvements over a reasonable time. Make sure you are working with a qualified ADA expert such as ACR Concrete & Asphalt Construction, Inc..
Let’s take a moment and “DISPELL THE MYTHS” surrounding ADA lawsuits. The following are the three most common myths:
MYTH: My business does not need to be compliant because the building is old and therefore grandfathered in.
- Fact: There are no grandfathering provisions. “Grandfathering” is the notion that ADA requirements do not apply to buildings constructed prior to the establishment of the ADA. This, however, is not true. Regardless of the age or historical importance of a building, if it is open to the public, you must provide access to the goods and services you offer.
A CASp inspector can provide a written report to identify what needs to be corrected. A CASp inspector is a professional who has passed an examination and has been certified by the State of California to have specialized knowledge of the applicability of state and federal construction-related accessibility standards.
Myth: The building is owned by someone else, so I am not liable for the violations.
- Fact: Compliance is not only the landlord’s responsibility. Both the lessor and lessee are responsible for the accessibility of a facility public areas. If you lease or rent a facility, it is advisable to have an agreement with your landlord about who is responsible for providing and maintaining the facilities accessible features.
Lease and rental agreements must stipulate whether the property was inspected by a CASp inspector, and, if so whether the property is compliant with all applicable construction-related accessible standards.
Myth: The standards are always changing, making it hard to stay in compliance.
- Fact: Construction standards for your facility do not change. The ADA has only been updated once in more than twenty years. Although the California Building Code is amended regularly, your facility’s compliance is determined by the building code in place when your facility was originally constructed or last ALTERED. A once-compliant facility is not made noncompliant because the accessibility regulations and guidelines are updated; however, accessible features must be maintained.
As you navigate and speak to attorneys, CASp inspectors, etc. you will come across terminology such as readily achievable, financial hardship or technically infeasible. These terms are often thrown around loosely as defenses on how not to become compliant. Be very careful of how you plan your defense strategy since you just may spend thousands of dollars defending your position.
At ACR Concrete & Asphalt Construction, Inc., we suggest you speak with a highly qualified TEAM which consists of expert ADA attorney, ADA designer / contractor and an experienced CASp inspector. The TEAM approach versus hiring each discipline separately is the TEAM approach that works together, precisely and economically to reduce time, costs and frustration in resolving your ADA lawsuit and protect you against second and third lawsuits. Hiring each professional individually may result in delays, lacking coordination and more costs in addition to frustration and confusion.
Here at ACR Concrete & Asphalt Construction, Inc. we take our clients down a path of full compliance swiftly and correctly the first time by providing documentation. The first step is a quality CASp report, and I can assure you they are not all the same. From here we perform a detailed site visit, perform surveying to establish all barriers. Then we perform a precise design with formal plans for the city to review and approve. Once all construction has been performed, we provide a city permit signed as the final approval. After this, a second CASp reinspection is performed to catch any possible errors.
Once we are done the client is provided a history of this compliance starting with the following documents:
- CASp original report to identify ALL corrections.
- Formal plans approved by the city.
- Permit card signed by the city inspector approving the construction work.
- CASp reinspection to catch any errors and document all corrections.
By following ACR Concrete & Asphalt Construction, Inc.’s 4-step approach, which we provide to ALL our clients, you will now have documentation with your city on when the property was brought into compliance. Without documentation, documentation, documentation, you may be vulnerable to multiple lawsuits.
Feel free to email a property address for a quick review and analysis at no cost on how you should proceed to bring your property into ADA compliance. Be proactive and sidestep the fast growing trend ADA lawsuits.
Anthony C. Guichard is the President and Founder of ACR Concrete & Asphalt Construction, Inc. He personally holds licenses; A, B, C-12, C-8 & C-32. ACR Concrete & Asphalt Construction, Inc has significant experience addressing complex ADA access compliance issues in the built environment. They are committed to improving access for individuals with disabilities by providing information, education, and access compliance solutions to commercial and rental property owners throughout the State of California. For more information, field investigation &/or CASP reports call (714) 377-9569, (562) 472-7730 or (310) 773-7900 or visit their website at www.acrconcreteinc.com