When a Few Inches Matter: What you need to know to make sure your business is ADA compliant

kangarooBy Jessie Johnson

What would you do if you walked into your local McDonald’s and saw a kangaroo? This is a true story out of Beaver Dam Wisconsin, where a woman named Diana Moyer brought her pet baby kangaroo named Jimmy into the restaurant with her and stated that Jimmy was her “therapy pet”.  When a customer complained, the manager called the police. The police asked Moyer and the kangaroo to leave the premises.

Under federal law, only trained service dogs (and sometimes trained miniature horses) are considered proper “service animals”.  A service animal does not include animals relied upon for emotional support (like Jimmy the kangaroo).

We’re starting to hear more and more stories like this (pigs on a plane, monkeys in the grocery store, etc.), and business owners need to make sure they are in compliance of the Americans with Disabilities Act (ADA). Caroline Larsen of Ogletree Deakins law firm visited the Lovitt & Touché Learning Academy to share her knowledge of the ADA Regulations, and what they mean for businesses.

There has been a slew of ADA litigation lately, specifically in Arizona and California. One or two particular law firms are responsible for the bulk of it. They target businesses for ADA violations, many that are unknown to the business owners. Unfortunately, the business-owners are not given an opportunity to remedy the situation, and are instead pulled into costly litigation. Check out the L&T Newsletter for more information about this.

According to the ADA, “No individual shall be discriminated against in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to) or operates a place of public accommodation.

When it comes to a “place of public accommodation”, this is pretty much every business that serves the public, including: hotels, restaurants/bars, banks, retail stores, movie theaters and any kind of service establishment.

So what does this mean for your company? Basically, it means that individuals with disabilities are entitled to everything that non-disabled people are entitled to. It also means that anyone who owns or operates a business can be sued if they don’t comply with the laws. Remember, commercial landlords and tenants are liable as well!

Discrimination includes operational barriers. This means that if you fail to make reasonable modifications in your policies, practices or procedures, when these modifications are necessary to afford goods and services to individuals, you are discriminating against individuals with disabilities.

Here are some examples:

  • A fast food restaurant that refuses to allow hearing-impaired customers to order at the drive-through window.
  • A ride-sharing business that does not allow users to bring service animals in their vehicles.
  • An event venue that will not allow a guest with diabetes to bring in a backpack with testing supplies and food to respond to insulin reactions.

There is an exception… If your business can demonstrate that making the necessary modifications would fundamentally alter the nature of its goods or services, then they are exempt.

Businesses are required to provide auxiliary aids and services if the aids and/or services are necessary to serve the disabled population. Some examples of auxiliary aids and services are:  visual menus, assistive listening devices, materials in braille, sign language interpreters and closed caption decoders. There is an exception to this as well. If the business can demonstrate that taking such steps would fundamentally alter the nature of the good or service or would result in an undue burden, then they are exempt.

Another aspect of the ADA rules is discrimination in the case where the business fails to remove an architectural barrier where removal is “readily achievable”.  Readily achievable means that the removal of the barrier is easily accomplished and can be carried out without much difficulty or expense.

Larsen also spoke about the facilities that may have been constructed before the ADA came into effect. They are treated differently than those facilities that were built after the Act. The key date to remember is January 26, 1992, as this is when Title II’s accessibility requirements for new construction and alterations began. Facilities built before this date are referred to as “pre-ADA” facilities. However, if the facility undergoes any alterations, this will trigger the compliance obligation, and the alterations must also make the facility usable by individuals with disabilities, to the maximum extent feasible.

More recently, the Title III regulations were updated in September of 2010 to give facilities standards for Accessible Design. The updated regulations clarified and added new requirements regarding hotel reservation systems, event ticketing, service animals and other power driven mobility devices (e.g. golf carts and Segways).  The new regulations also contain a “Safe Harbor” clause. This means that when new design guidelines are stricter, your business is in compliance if it satisfied the prior guidelines unless you alter the property.

According to Larsen, the likely focus of future ADA litigation will be website accessibility, Point of Sale devices, service animals and bathrooms. She also cautions that the ADA is very strict. Even if you’re off by one inch on your signage, you may be in violation. This means that you are liable for remediation and attorneys’ fees (translation = a lot of money!).

The ADA Regulations Manual is 280 pages, so staying in compliance is no easy task. It covers all aspects of a business, including parking lots, sidewalks and curbs, front door, all retail space, counter heights, signs and all services you provide.

Bathrooms are an especially common ADA lawsuit target. There are countless detailed regulations on public bathrooms, including:

  • Toilet location and height
  • Placement, Length and Diameter of grab bars
  • Height and depth of sink and faucet controls
  • Height and placement of the soap dispenser, towel dispenser and hand dryer
  • Trash can size, placement and lid
  • And many more

ADA Compliance Do’s and Don’ts

Larsen provided us with a handy guide of Do’s and Don’ts for ADA compliance:

Don’t ask the customer to prove they are disabled.

Don’t inquire into a patron’s disability – particularly with respect to ticketing, hotel reservations, service animals and Segway use.

Do consider conducting an ADA “walk around”.

Do get familiar with regulations and requirements that apply broadly (parking lots, bathrooms, building access).

Don’t think it’s not going to happen to your business or that the litigation explosion is over.

Don’t try to avoid compliance by being “clever” – such as putting up a “Sorry, restroom temporarily out of order” sign if you know your bathroom is not complaint.

Don’t think that just because installing a ramp or reconfiguring the bathroom may cost thousands of dollars that you don’t have to make the change.

Do expect that you will have to do the following:

  • Install ramps
  • Make curb cuts in sidewalks and entrances
  • Rearrange shelving, tables, chairs, vending machines, furniture
  • Widen doors; install offset hinges to widen doorways
  • Install accessible door hardware
  • Eliminate a turnstile or provide an alternative accessible path
  • Install grab bars in toilet stalls; rearrange toilet partitions
  • Reposition dispensers, mirrors, etc. in a bathroom
  • Create designated accessible parking spaces
  • Remove high pile, low density carpeting

Do expect to be held to a high standard to demonstrate that removing a barrier is not readily achievable. The burden is on you to demonstrate this, and the courts require detailed cost estimates, architectural and construction plans and an analysis of the effect on your business.

Don’t think ignorance is a defense!

Don’t assume that because your building plans were approved by the city, county, etc., you have a complete defense.

Do express empathy and make your best effort when confronted with a situation where a lack of compliance is limiting a patron’s access.

Do train your staff on how to respond to customer inquiries about access issues.

Do allow trained service animals into your establishment. Remember, like in the case of Jimmy the kangaroo, only trained service dogs (and sometimes trained miniature horses) are considered proper “service animals”. Any other type of animal will be up to you to decide if you want to allow it into your establishment.

A big thank you to Caroline Larsen for taking the time to help us sort through the ADA regulations, and helping us to ensure that we are in compliance.

If you have any questions about the ADA, please contact your Lovitt & Touché representative.