Advocacy Groups can Force ADA Compliance

If you own or manage commercial real estate that lacks handicapped access, you have a bomb on the property. The problem is you don’t know how long the fuse is, who knows how to set if off, or even whether they will do so.

The law to consider is the Americans with Disabilities Act (ADA). Both the law and the implementing regulations are vague. That’s by design. The uncertainties are the law’s strength and its weakness.

To most people ADA means ramps into buildings that aren’t built at grade. ADA also means dedicated handicapped parking, and striping the parking lot with some stalls wide enough to accommodate a van from which a wellchair can exit. ADA means drinking fountains and bathroom fixtures at accessible heights. It means levers on doors and easy exits from buildings, including power assisted doors. It means elevators to upper floors.

In theory ADA means all these things, but it can also mean not all of them. The word is “feasible.” Admittedly vague, it signals the intent of Congress to avoid mandating impractical retrofits. At the same time, an owner can have a problem if there is no plan to address the more costly issues. In many older buildings, for instance, building an elevator to the second floor may be more costly than reasonable people (or a judge) would consider feasible. Not including an elevator in a major retrofit of the building, however, is probably a risk not worth taking.

Reducing the risk means not playing ostrich. A compliance plan should address the issues in a logical sequence. Showing a good faith effort counts for something with this law. Not striping the parking lot because one fears the later costs is ostrich behavior. Including the major future costs of ADA compliance in the sinking fund for the next major capital improvement project is sound business.

What is the risk of being hit with a compliance action? Most government mandates create the image of Federal inspectors and lawyers making threatening noises. With the ADA the Feds can sue non complying business owners and landlords. The process is cumbersome and rarely used. There have been no such actions in Alaska since the law took effect in 1992.

The teeth in the law is the right it gives to private groups and organizations to enforce it. They do. A University of Alaska professor, Jesse Owens, heads Legal Access Watchdogs, an advocacy group that has already prodded compliance all over Southcentral Alaska. The process can begin with anyone who notices a potential violation and complains about it to somebody like Prof. Owens who knows how the law works and how to rumble for compliance. Then the letters begin.

In Alaska even the advocacy groups are more diplomatic than they are Outside. It’s part of the more relaxed business tradition that makes it pleasant to live here. That doesn’t mean advocacy groups are any less informed. It doesn’t mean they will be any less tenacious. It doesn’t mean they are less likely to sue. But they will often start with informal contact and advice before turning to letters. The first letters are usually polite. Most advocacy groups seek a dialogue: show a willingness to talk and they will talk. Rebuff them and life gets difficult.

So it is with Legal Access Watchdogs. Their initial letters are a survey to get a feel for the level of compliance. The ones who have fought them seem to be the ones they like to take on.

All over Southcentral Alaska you see ingenious solutions to tricky access questions. Think of what you see at the Bake Shop, that popular Girdwood lunch stop skiiers and tourists enjoy at the old resort hotel. You used to have to take several steps down into the place and the bathroom was out the door, back into the hotel, on the second floor. The establishment was crammed. Business was doubtless good enough to justify a major remodel. ADA compliance wasn’t the motivator, but all those problems got solved at the same time. Now you could get into the place with a wheel chair, discover accessible bathrooms and enjoy a much roomier and better lit facility too.

Nationwide, the force behind ADA compliance is the advocacy groups. They also have expertise. (More neutral sources of expertise are architects and commercial real estate specialists.) To understand the advocacy groups it’s important to remember their power to sue and collect damages. If the case has enough potential return, an attorney will take it on a contingent fee basis. That’s dangerous for a potential defendant.

Private enforcement can be extremely effective. Civil rights legislation since the 1960’s has been privately enforced. Class action employment discrimination suits secured major reforms of illegal practices, and handsome fees for those legal specialists. Courts have repeatedly been generous in such awards on the theory that Congress intended to provide motivation for private enforcement of public rights. Privately enforced, the ADA is just another such civil rights law.