Law-BP 154 Prepare NOW for an ADA attack - Prepare NOW for...

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Prepare NOW for an ADA Attack Myths and Tips on How to Minimize ExposureAfter more than 20 years of being on the books, government enforcers and private plaintiffs have greatly escalated ADA suits against property owners. Here are some common myths that you should know, as well as some tips on how to minimize your exposure to costly claims under the ADA and comparable state laws. The ADA and state counterparts.The Americans with Disabilities Act or ADA has beenin force for more than 20 years. The ADA applies to all 50 states, whether or not they have their own statutes on the subject. A few states, most notably California, Colorado and Florida, have laws that in some respects are more stringent than the ADA and which provide for attorneys’ fees and damages. Not surprisingly, these state laws have spurred a deluge of private lawsuits which some cynics claim are driven by self-interested plaintiffs’ lawyers. To give some sense of how big this is becoming, one observer countedmore than 600 recent ADA cases filed in the Northern District of California alone (an area that includes the San Francisco Bay Area). California’s version of the ADA is knownas the Unruh Act, and it actually predates the ADA by 20 years. Where appropriate, this article will reference California’s Unruh Act to illustrate how applicable state law may apply to a situation. Big penalties may apply to owners, operators, landlords and tenants.The ADA and the Unruh Act apply to all owners and operators of all places of public accommodation within a state. Owners and operators include landlords as owners of a building, and their tenants who operate a business in the building. Under the ADA, a court may assess civil penalties of up to $50,000 for a first violationand up to $100,000 for subsequent violations. Under the Unruh Act, owners and operators who knowingly violate the law can be liable for three times the actual damages the plaintiffs can prove they suffered. MYTH: The ADA does not apply until major alterations are made.Many people mistakenly believe that the ADA is not “triggered” until major construction or alterations. This is false. It is true that new construction and even more limited alterations will require the removal of all access barriers. But even for older properties or those that have not been remodeled, the ADA requires that barriers to access be removed whenever “readily achievable.” Readily achievable means easily accomplished and able to be carried out without too much difficulty or expense. Numerous factors determine what is readily achievable, including the benefit afforded by removing the barrier, cost of the removal, financial wherewithal of the owner and whether the modifications change the nature of the business. No consideration is given to whether a barrier existed before the ADA went into effect. The Unruh Act specifically requires that barriers be eliminated whenever property is being improved, but compliance with the Unruh Act in this regard does not 134 Colonnade Drive, Peachtree City, GA 30269 770-631-4627 [email protected]Castro & Associates

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