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A recent headline in the Philadelphia Inquirer daily newspaper read: “Business Owners Call Flood of Disability Suits an Ambush.”
The article, by L. Stewart Ditzen, said that more than three dozen local Philadelphia business owners, mostly restaurants and taverns, are being sued for violations of the Americans with Disabilities Act (ADA). It further states that since May, more than 100 lawsuits have been filed in Philadelphia and Camden N.J., all by the same law firm and all for violations of the ADA. The article goes on to say that the same two people, both handicapped, have brought all the suits. The law firm is also demanding that the businesses being sued pay its legal fees, usually $2,000 or more.
According to the law, a disabled person who sues a business in order to correct ADA violations cannot receive monetary damages. However, the majority of the suits claim “emotional distress” and “anger.”
The suits imply that a particular person with certain physical handicaps attempted to enter or use a particular business but couldn’t because some or all of the required ADA modifications weren’t in place.
Under these allegations, a business can be compelled to pay compensatory and punitive damages to the plaintiff in addition to legal fees.
Judging by similar waves of lawsuits that appeared in Florida and California, these actions aren’t likely to abate any time soon. I have no doubt that the ends that these suits achieve Ñ businesses being in compliance – are necessary. It’s the means by which they’re being achieved that’s causing the furor.
One of the immediate problems is that the ADA presently doesn’t provide for an abatement time period in which to correct violations before a suit can be filed. Another is that there’s no “grandfather” clause that exempts businesses in old buildings.
Owners aren’t required to make major structural changes, only “readily achievable” changes, such as widening restroom doors or installing ramps.
Apparently, these readily achievable changes aren’t being performed in the majority of cases, and a local law firm appears to be dead set on making owners of these businesses pay for that.
My Story
I had an experience with ADA requirements when we recently refurbished and refitted our new CollisionMax Supercenter. Before we could obtain our Certificate of Occupancy, we had to undergo building, plumbing and electrical inspections by township officials. Our contractor had made sure that all of our doors, restrooms and entrances were ADA compliant, so we were pretty much OK there. The problem arose when the building inspector walked over to our newly installed paint booth.
He commented that the paint booth installation was nicely done and inspected the dry-chemical fire-suppression system that was fitted onto the booth.
“You are aware that you must install a fire-suppression warning device with an eight-second delay inside that booth, aren’t you?”
“Of course,” I replied, telling him that we planned to install an explosion-proof warning buzzer inside the paint booth. If that buzzer sounds, the painter will know that he has eight seconds to get out before the interior of the booth is buried in fire-smothering dry chemical.
“You also need to install an explosion-proof strobe next to the buzzer,” he added.
Somewhat puzzled, I asked why I needed two warning devices. The building inspector explained, “You need the strobe in case your painter happened to be deaf and wouldn’t be able to hear the buzzer.”
Makes sense, I thought.
Well then, to save our company about $1,500, I’ll just install the explosion-proof strobe warning light and eliminate the buzzer.
“You can’t do that” he said. “You need to install both a buzzer and a strobe.
“Wait,” I said. “If I have a flashing strobe, why do I also need a buzzer? The booth is only 14 feet x 26 feet. There’s no way a painter won’t see a flashing strobe.”
He responded: “If your painter happens to be blind, he won’t be able to see the strobe. Therefore you also need the buzzer.”
I laughed. The building inspector didn’t.
As my laugh slowly faded to a whimper, the building inspector looked at me with the sort of look that you give someone who just asked you if you had a pleasant day at the proctologist’s office.
Hmm …
I knew I needed to put on my serious face here rather quickly, but I was having a hard time finding it because silly images of a technician painting a car while being pulled along by a German Shepherd were dancing through my head. Great, I thought. First dirt in the paint, and now dog hair, too.
“Do you understand what it is that we do here?” I inquired rather incredulously but politely Ñ because I didn’t want to ruffle the building inspector’s feathers too much lest he tell me I need two strobes. “We paint cars and trucks, which involves mixing and matching paint. A blind painter wouldn’t be able to see the colors to match them. Plus, painters need to see the flow of product as it comes out of their spray guns to ensure they’re matching the factory finish. We absolutely are an equal opportunity employer, but we could never employ a painter who’s blind.”
To that he quickly replied: “You don’t know that.”
Hmm again …
I must admit that at this point in the conversation, I wasn’t sure exactly what I did know. I told him that several times in my collision repair career I’d been accused of having a painter who was blind, but I’d never actually employed one.
I then asked him to please make a sensible, logical interpretation of the ADA rules in this particular case because of the fact that blind people cannot match paint and therefore would never be employed as painters in our company. Perhaps in some other capacity, but not as a painter.
As I watched that request fly through one of his ears and out the other, he asked me when I expected to have the installation of both explosion-proof units in the booth completed. I sighed and replied, “Two weeks.”
I didn’t know if that time period was accurate. I just remembered that answer from a home improvement contractor in the movie “The Money Pit,” and it seemed to satisfy the building inspector.
Two weeks and $3,000 later, we did indeed have both an explosion-proof strobe and buzzer installed in our paint booth. (Hey, it may not make perfect sense, but I now have that warm, fuzzy inner glow in the space where three grand used to occupy.)
Blind Painter Wanted
That story is true and actually did happen. I included it because of the rather humorous way in which it unfolded, but there are serious things to be learned here, too.
We all need to be acutely aware of any and all ADA rules and regulations that apply to our buildings and equipment. Not only because it’s the law, but because it’s right.
In addition, don’t expect any government official to stray so much as a comma away from what’s written in those rules and regulations. Even given the absurdity of a blind automotive painter, the inspector didn’t give one second’s consideration to making his own call based on a particular circumstance.
But do not despair. Forewarned is forearmed.
On new construction, be sure to check your architect’s knowledge of ADA laws on both the interior and the exterior of the building. Claiming your architect messed up isn’t going to save you. On existing buildings, judging from what I’ve read in the newspapers lately, I’d suggest that you consider retrofitting your restroom entrances and parking if necessary to ADA requirements.
Where can you get the requirements?
You’ll find much of what you need at www.ADA.gov. It’s a friendly site, so it won’t take you long to search for what may apply to you.
If you decide to implement some changes to be ADA compliant, I strongly suggest that you don’t guess at the specifications. The ADA rules are very specific as to how far something is from something else, and you could literally be sued over an inch if incorrectly done.
If you make some readily obvious changes now, not only will you ensure that everyone has the same access to your business and its amenities, but you may also avoid being sued for non-compliance to ADA laws.
As for me, I’m off to figure out how to remove dog hair from fresh clearcoat.
Writer Richard V. Brigidi handles site development for CollisionMax, a collision repair company with multiple locations specializing in insurance claims on late-model vehicles.
