Long Beach, Calif., Attorney John Coates is not someone you want to hear from if you own commercial real estate that has public parking, for example.
There’s nothing wrong with Coates, in fact he’s a very nice guy and a top notch attorney, but a letter from him spells bad news; “You were sued in federal court – not by me – but by a law firm that specializes in violating the Americans with Disabilities Act and, in your case, something incredibly small.” My client received a letter from Coates.
You’re probably wondering, “So what did your customer do?”
Now buckle up for a wild ride, but first a little history, as Coates recounts:
“What the United States Congress and President George HW Bush did on July 26, 1990 cost innocent property owners millions of dollars in fines and legal fees – paid to attorneys who file hundreds of thousands of lawsuits – most of them petty, ridiculous , and do nothing to promote the ADA’s access goals, but rather turn these lawyers into multimillionaires.
“Before signing the law, Bush was warned that the ADA was vague, costly, and would lead to an explosion of litigation. His answer? “The legislation has been carefully crafted to provide clear guidance to the business community.”
Coates references a well-researched 2018 article in the University of Baltimore’s Journal of Land and Development entitled “ADA Regulatory Compliance: How the Americans with Disabilities Act Affects Small Business.” It states:
“For all of their noble purposes, the ADA is a license for lawyers to print money at the expense of small business owners.”
Do you already know the term parking lot slope? Neither did I until my client was sued, but according to the National Association of Truck Stop Owners, a staggering 95% of all ADA suits contain a parking problem.
“Disabled parking spaces and aisles cannot slope more than 2.08% in any direction,” says Coates. “This means that for every 50 inches of horizontal change, there is only one inch of vertical change possible because you don’t want slopes that are too steep for someone in a wheelchair to roll away and injure themselves too quickly.
“However, this cannot be guaranteed because the natural settlement of parking spaces, small earthquakes and the weight of the vehicles alone have a constant impact on the slope.”
I bet you’re thinking, “How come something as invisible as the slope of a parking lot leads to the property owner being sued for an ADA violation?”
“These law firms hire people to roam cities with an inclinometer,” says Coates, “looking for a handicapped parking spot that is beyond the ADA line. In all of the cases I have seen, there have been no reports of injuries due to a breach of the slope. “
If You Are Sued, What Should You Do? Tip: be objective!
One of the most unfair things about the ADA is that you can be sued without ever receiving notification that you are violating the rules and giving you the opportunity to fix the situation in advance.
Also, because the majority of these lawsuits are filed in federal court, the plaintiff is automatically entitled to several thousand dollars in attorney fees. In fact, many small businesses have had to close their doors over technical but innocuous ADA claims made by attorneys that judges routinely label as unethical.
So what should you do if you are served with a lawsuit or notified that a lawsuit has been filed against your company?
Coates outlines these important steps:
(1) Contact an experienced Certified Access Specialist (CASp) inspector to find out if you are actually breaching the breach.
(2) If so, don’t waste your money on the lawsuit! We call these violations strict liability, which is like a speeding ticket. If you are one mile per hour over the limit, you are guilty.
(3) You will most likely receive letters from lawyers representing defendants. Don’t just hire the first person to contact you! Instead, ask, “What will it cost me?”
If the CASp inspector gave you the bad news and the lawyer can’t give you a solid number or says, “I think we can defend this,” RUN! Talk to another lawyer because there are way too many lawyers out there who want to milk their clients! In fighting these cases, you will be spending far more than you would on handling it.
Can I minimize the likelihood of a lawsuit?
Coates recommends that all commercial property owners undergo a CASp inspection so they can identify and resolve potential problems.
“But neglecting property is also an invitation to be sued,” he notes, adding, “For example, sue me doesn’t say anything other than looking at your handicap signs. If you don’t have all three signs or stickers, beg someone to come in and look for more problems. “
Dennis Beaver is a Bakersfield attorney and welcomes comments and questions from readers which can be faxed to 661-323-7993 or emailed to [email protected]. Also visit dennisbeaver.com.