Complying with ADA—Americans with Disabilities Act

Handicapped Parking sign

The letter came along with all the other correspondence at our west LA store. But it looked oversized, a bit heavy, and in a legal envelope. On the cover was the name and address of another greedy law firm. I opened it with great distress, knowing the contents were in no way the winning numbers of a lottery ticket or an invitation to a party. The letter was basically a legal version of blackmail, mentioning an individual I will not name here that was a known person in the community that would go from store to store, not even eating at any restaurant or convenient store but rather staking out these types of businesses like a demented version of a handicapped ninja.

The individual was “handicapped” in the sense that he was an “American with Disabilities”. He would come in and without saying a word, without so much as taking a bite, would proceed to the bathrooms and take measurements. He would also take measurements of the doors with an instrument called a door pressure gauge and see how many pounds the pressure was. He would write small notes in his book and proceed to leave. Highway robbery? Yes but in a new, cold-hearted, annoying and unethical yet completely legal way.

These cowardly weasels come not to eat at our fine dining establishments, but to in order to sue. The letter wanted $5,000 for each of the 4 violations he found. One for the heavy door, one for another entrance, one for the uncovered pipe beneath the sink (the argument is they can burn their knees on wheelchairs if there is no insulation), and one for a hallway that was too close between the doors. That’s $20,000 total, by the way, in case you’re not keeping count. Highway robbery indeed. The unintended consequences of a badly worded law that passed Congress without much oversight or consideration into how the law might be abused. Nowadays, the ADA is a great way for Americans with disabilities, often soldiers or others disabled by injuries from accidents, to make money without actually having to work. Well, I guess in their mind what they do is “work”, if visiting businesses and suing them without even actually intending on eating there can be called work. People that rob banks and carjack people consider what they do work as well. This, of course, is not to say that most of our injured soldiers, who are heroes in my book, usually behave. Most of them served with honor and great distinction, and many often recuperate and go on to become highly successful business people. These are the cowards with no names, who go around doing this. Who they are and what their past is I do not know, but I know their future is bleak. Anyone that goes around suing people as a job who is actually disabled gives disabled vets and other disabled Americans a bad name. They should be ashamed of themselves.

We negotiated two of the violations away with our lawyer, which actually weren’t “real” violations. What these people do with their greedy lawyers is they often overestimate which of the laws restaurants or other establishments have violated. It’s kind of like throwing darts in the dark. They want to see what will stick. We eventually had to settle out of court with 2 of the violations at the “reduced” price of $5,000. We tried to get it done through insurance but at the time, our insurance did not cover violations of the ADA act. One 7-11 owner I spoke to in Glendale told me they head to pay $10,000 to create a ramp because of one lawsuit, which is fine by me, except he had to pay the guy’s lawyer and the guy himself thousands more just to go away. If you are reading this and you’re a lawyer, do you think this is fair for business owners? If so I fear for our future.

We had to pay this highway robber out of pocket. Imagine having to pay someone $5,000 just to go away?! This is what restaurants and other businesses have to deal with repeatedly unless Congress closes this terrible loophole that allows these seedy individuals, armed with rulers and pressure measuring instruments, to come and legally rob businesses that work so hard to keep their doors open. Life is difficult enough as it is without these pests. The law had good intentions: to make life easier for injured people and others with disabilities, to give them mobility and make it easier to work at their job. That is good and noble; however what happened is you now have a wild-west style free-for-all when these people can just go store to store, suing people at will. Few of us have the resources or time to countersue these people for the unethical way in which they are doing this, and to sue these shady lawyers and strio them of their license to practice law; and trust me if I had unlimited resources that is exactly what I would do. Our bills are hard enough as it is.

Every restaurant owner pays bills. Water, power, waste disposal all cost money. There’s no escape from such expenses if a restaurant is to survive, let alone thrive.

Now imagine if you had to pay $300 or $400 an hour, totaling perhaps several thousand dollars every month, in lawyers’ fees to protect yourself from lawsuits by people who may never have been to your restaurant or even tasted its food. What these litigants mostly want is to show that you violated the American Disabilities Act by ruining their hypothetical visit to your restaurant. These are things most entrepreneurs often font think about. After all, you dream of opening your place and serving your customers, not situations like this.

The law maybe an ass, as Charles Dickens’s protagonist in Oliver Twist famously remarked, but most of us have to bow before it or face the consequences of doing otherwise. For restaurateurs who have been sued for allegedly violating the American Disabilities Act, the financial burden of a court battle can be a huge liability.

Which is why it’s imperative for every budding restaurateur to understand what the American Disabilities Act is. ADA, as the act if often referred to in short, is a wide-ranging civil rights law that provides protections similar to those enshrined in the 1964 Civil Rights Act. Enacted into law in 1990, ADA ensureS that people with disabilities do not face discrimination in public places, including restaurants.

Let’s say your restaurant has two restrooms, but there are no signs on their doors clearly marking which of the rooms is for men and which for women. You should know that you can be sued by any customer for your failure to clearly indicate which of the two major genders in our 21st-centure world—male and female—are permitted access to the restrooms.

Although the gender-based signage may be behind the times—what about the thousands of people classified as transgender, for example—it needs to be clear: Any ambiguous names, including in foreign languages, or cute symbols or illustrations, could still spell legal trouble. (That’s right—even “His” and “Hers” or “Sir” and “Madam” markers, whether in English or French, are rife for being legally challenged.)

While proper signage is important—and easy to implement—it’s likely to be the least of a restaurant owner’s headaches. A far more cumbersome issue is ADA-compliant access to people in wheelchairs—not just to restrooms but to parking lots and the restaurant floor.

Wheelchair access in parking lots—and to the restaurant via ramps—are two key problems restaurant owners ought to be vigilant about, unless they don’t mind undergoing the enormous stress that Fine Line & Trim, a Rancho Cordova-based upholstery business in California, has reportedly experienced.

In August 2013, Victor Valdivia, the owner of Fine Line & Trim, spotted two young women taking photographs of his upholstery business and measuring its parking spaces. A few weeks later, Valdivia was served with a lawsuit by Scott Johnson, a 51-year-old quadriplegic who alleged that Valdivia violated the Americans with Disabilities Act because the parking spaces at his business were not accessible by people with disabilities.

Never mind that Johnson would have no sensible reason to visit Valdivia’s store because the upholsterer sold nothing over the counter. News reports quote Valdivia as saying that Johnson wanted $20,000 to settle the lawsuit. “I feel it is legal extortion,” said the upholsterer, who claimed he was spending $2,000 a month on lawyers to defend himself against Johnson’s lawsuit.

What’s more, since ADA became law in 1990, Johnson has reportedly filed ADA lawsuits against more than 2,200 businesses. (In an interesting twist, three women who formerly worked to Johnson alleged in a court in Sacramento that he rarely went to businesses. Instead, he ordered his employees to drive around the establishments and take photos and measurements that fell short of ADA compliance.

While it’s debatable whether Johnson’s actions amount to legal extortion or if they force businesses to comply with the ADA law, this much seems clear: Johnson’s alleged attempts to settle with Valdivia are part of a pattern that prompted California Governor Jerry Brown to sign a 2013 state law aimed at curtailing frivolous lawsuits based on ADA. The law, Senate Bill 1186, also makes it illegal to threaten to sue business owners if they fail to settle for a certain amount of money.

 ******

The Americans with Disabilities Act was the brainchild of Senator Tom Harkin, a Democrat from Indiana who was the major sponsor of Senate Bill 1186 in Congress. Harkin is said to have delivered his introductory speech in the Senate in sign language. He did so, he said, to enable his brother, who was how hard of hearing, to understand what he was saying.

While the Americans with Disabilities Act is clearly a well-intentioned law, it’s also a symbol of much that is wrong with American jurisprudence. Critics of ADA rightly see the act as a legal right devoid of responsibility and human judgment.

To understand this criticism, let us go to New York City in 1991, just after the fall of the Berlin Wall and the end of the Cold War. (History may or may not have come to an end in the decade of the 90s, but a lot of sacred legal cows were certainly running amok on the American landscape.) It was a time when Rudy Giuliani had yet to become mayor of New York. Large parts of the city were still severely blighted, and finding a public restroom wasn’t easy, not least because most toilets in the New York subway had been closed down because of vandalism and crime. With museums out of bounds to who didn’t pay admission and restaurants restricted to patrons, the city’s streets were the only places where people could urinate easily.

And so New York’s public reacted with great enthusiasm when a philanthropic organization known as the Kaplan Fund proposed to finance six coin-operated sidewalk toilet kiosks in various parts of the city. The toilet were to be imported from Paris, whose municipal authorities provide them for residents and tourists. Over the years, Parisians had perfected the use of the toilets, which were cleaned with a shower of water and disinfectant after every use. The doors to the toilets opened automatically every 15 minutes—to prevent people from spending the night inside. And because the toilets were only five feet in diameter, they fit nicely in New York’s typically crowded sidewalks.

Best of all, the toilets were supposed to cost the budget-strapped city nothing: Advertising panels on the outside would have paid for the freight. City Hall was all set to test the toilets over a six-month period—and that’s when the plans ran into a glitch: The toilets weren’t big enough for wheelchairs to fit inside. That made them illegal because New York’s antidiscrimination law forbids the withholding or denying of any access to public accommodation to the disabled.

The Mayor’s Office of the Disabled called the toilet kiosk program “discrimination in its purest form.” When the city’s head lawyer, a champion of liberal causes stretching back three decades, proposed a legislative amendment for the test, a lobbyist for the disabled accused him of “conspiring to violate the law”—seemingly unaware that amending the law through the democratic process amounted to neither a conspiracy nor a violation. When someone at a public forum asked the potential number of wheelchair-borne users compared to others who might benefit from the toilets, the questioner was booed for being politically incorrect. For the disabled and their advocates, this was an issue of rights—not civic reasonableness.

Just as ADA compliance issues wrecked New York City’s plans for sidewalk toilets, ADA-compliant restrooms are the big bugaboo for restaurant owners. Besides proper signage, the width and height of the doors in the restrooms must be of a certain measurement. Further, the weight of doors should be such that disabled patrons can open it without being required to apply inordinate pressure. (Anything more than eight pounds of pressure is grounds for a lawsuit.)

ADA compliance isn’t just limited to customers—it also extends to employees and job applicants. According to the latest regulations, disabilities covered under ADA include deafness (“hearing impaired”), blindness (“visually impaired”), intellectual disability, partial or complete loss of limbs, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV/AIDS, multiple sclerosis, muscular dystrophy, major depression, bipolar disorder, posttraumatic stress disorder, obsessive compulsive disorder, schizophrenia, and mobility impairments requiring wheelchair use.

A host of other conditions also qualify for ADA protection as long as victims of alleged discrimination can prove that a public accommodation restricted certain life activities in some way. These life activities are broadly defined as seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, social interactions, working, caring for oneself, and performing manual tasks.

The umbrella for major life activities covered by ADA is so large that it also includes key bodily functions, such as the immune system, normal cell growth, the digestive system, bowels, bladder, neurology, blood circulation, respiration, endocrine functions and reproductive functions. Employees are deemed disabled even during periods of remission. And because it’s possible to discriminate against workers well after the effects of their disabilities have disappeared, the Americans with Disabilities Act prohibits discrimination against anyone who has had a past impairment. This includes former cancer patients, rehabilitated drug addicts, recovering alcoholics, and even those who have suffered a misdiagnosis or have been wrongly classified as suffering from a condition.

Top 10 ADA Access Violations

  • Signs: Outdated or incorrect signage.
  • Parking: Slope too steep or wrong dimensions.
  • Access Routes: Wrong signs, steep slopes or other hazards.
  • Curb Ramps: Steep slopes.
  • Pedestrian ramps: No handrails, landings not level, or no ramp.
  • Bathrooms: Too small or fixtures out of reach.
  • Stairs: No hazard striping or handrails, rails at wrong height, or uneven steps.
  • Seating: No access for people with disabilities.
  • Doorways: Clearance issues or improper door handles.
  • Exits: No exit or no signs showing exits.

It’s worth noting that in California, as in most other states, the Americans with Disabilities Act has a hefty compliance manual regarding “architectural barrier removal.” The manual is based on the following four codes and two guidelines:

  • California Building Code
  • Uniform Building Code
  • ADA Accessibility Guidelines
  • Fair Housing Accessibility Guidelines
  • California Plumbing Code
  • California Electric Code

Here are some of the key laws that may apply to restaurants:

Signs

  • At every primary public entrance and at every major junction along or leading to an accessible route of travel, there shall be a sign displaying the International Symbol of Accessibility for the handicapped.
  • These signs shall indicate the direction to accessible building entrances and facilities.

Curb Ramps

  • The slope of curb ramps shall not exceed 1 unit vertical to 12 units horizontal (8.33% slope).
  • Transitions from ramps to walks, gutters, or streets shall be flush and free of abrupt changes, except that curb ramps shall have a detectable warning that extends the full width and depth of the curb ramp inside the grooved border when the ramp slope is less than 1 unit vertical to 15 units horizontal (6.7% slope). Further, detectable warnings shall consist of raised truncated domes with a diameter of nominal 0.9-inch (22.9 mm) at the base tapering to 0.45-inch (11.4mm) at the top, a height of nominal 0.2 (5.1mm) and a center-to-center spacing of nominal 2.35 inches (59.7mm). The detectable warning shall contrast visually with adjoining surfaces, either light-on-dark or dark-on-light. The material used to provide contrast shall be an integral part of the walking surface. The domes may be constructed in a variety of methods, including cast in place or stamped, or may be part of a prefabricated surface treatment.
  • Curb ramps shall be located or protected to prevent their obstruction by parked cars.
  • The slope of a fanned or flared sides of curb ramps shall not exceed 1 unit vertical to 8 units horizontal (12.5% slope).
  • If a curb ramp is located where pedestrians must walk across the ramp, then it shall have flared sides, the maximum slope of the flare being 1 unit vertical in 10 units horizontal (10% slope).
  • Curb ramps shall be located or protected to prevent their obstruction by parked cars.
  • Built-up curb ramps shall be located so that they do not project into vehicular traffic lanes.

Accessible Parking

  • Accessible parking spaces shall be located on the shortest possible accessible route to travel to an accessible building entrance.
  • In facilities with multiple accessible building entrances with adjacent parking, accessible parking spaces shall be dispersed and located near the accessible entrances.

Parking Space Size

  • Parking spaces for disabled persons shall be 14 feet (4267mm) wide and outlined to provide a 9-foot (2743mm) parking area and a 5-foot (1524-mm) loading and unloading access aisle on the passenger side of the vehicle.
  • When more than one space is provided in lieu of providing a 14-foot wide (4267mm) space for each parking space, two spaces can be provided with a 23-foot-wide (7010mm) area lined to provide a 9-foot (2743mm) parking area on each side of a 5-foot (1524mm) loading and unloading access aisle in the center.
  • The minimum length of each parking space shall be 18 feet (5486mm).

Van Space(s)

  • One in every eight accessible spaces, but not less than one, shall be served by an access aisle 96 inches (2438mm) wide minimum and shall be designated van accessible.

Slope of Parking Spaces

  • Surface slopes of accessible parking spaces shall be the minimum possible and shall not exceed ¼-inch (6.4mm) per foot (2.083% gradient) in any direction.

Signs

  • Every parking space required under ADA shall be identified by a sign, centered between 36 inches and 60 inches (914mm and 1524mm) above the parking surface, as the head of the parking space.
  • This sign shall include the International Symbol of Accessibility and state “RESERVED” or equivalent language.

Arrangement of Parking Spaces

  • In each parking area, a bumper or curb shall be provided and located to prevent encroachment of cars over the required width of walkways.
  • The space shall be so located that persons with disabilities are not compelled to wheel or walk behind parked cars other than their own.
  • Pedestrian ways which are accessible to people with disabilities shall be provided from each such parking space to related facilities, including curb cuts or ramps as needed.
  • Ramps shall not encroach into any parking space.

Facility Accessibility: Water Closets

  • Water closets in bathrooms required to be accessible shall conform to the provisions of the California Plumbing Code—CPC—1502.0.
  • The water closet shall be located in a space minimum of 36 inches (914mm) in clear width, with 48 inches (1219mm) minimum clear space provided in front of the water closet.
  • This space may include maneuverable space under a lavatory, if provided, arranged so as not to impede access.
  • Lavatories adjacent to a wall shall be mounted with a minimum distance of 18 inches (457mm) to the center line of the fixture.
  • All accessible lavatories shall be mounted with the rim or counter surface no higher than 34 inches (864mm) above the finish floor and with a clearance of at least 29 inches (737mm) from the floor to the bottom of the apron with knee clearance under the front lip extending a minimum of 30 inches (762mm) in width, with 8 inches (203mm) minimum depth at the top.
  • The clearance shall be the same width and shall be a minimum of 9 inches (229mm) high from the floor and a minimum of 17 inches (432mm) deep from the front of the lavatory.
  • Hot water and drain pipes accessible under lavatories shall be insulated or otherwise covered.
  • There shall be no sharp or abrasive surfaces under the lavatories.
  • Faucet controls and operating mechanisms shall be operable with one hand and shall not require tight grasping, pinching or twisting of the wrist.
  • The force required to activate controls shall be no greater than 5 pounds (22.2 N).
  • Lever-operated, push-type and electronically controlled mechanisms are examples of acceptable designs.
  • Self-closing valves are allowed if the faucet remains open for at least 10 seconds.
  • The minimum height of water closet seats shall be 15 inches (381mm) above the floor.
  • The height of accessible water closets shall be a minimum of 17 inches (432mm) and a maximum of 19 inches (483mm) measured to the top of a maximum 2-inch (51mm) high toilet seat, except that 3-inch (76mm) seats shall be permitted only in alterations where the existing fixture is less than 15 inches (381mm) high.
  • Controls shall be operable with one hand, and shall not require tight grasping, pinching or twisting.
  • Controls for the flush valves shall be mounted on the wide side of toilet areas, no more than 44 inches (1118mm) above the floor.
  • The force required to activate controls shall be no greater than 5 pounds.

Facility Accessibility: Bathing and Toilet Facilities 

  • Bathroom entrance doorways shall have an 18-inch (457mm) clear space to the side of the strike edge of the door on the swing side of the door.
  • Sufficient maneuvering space shall be provided for a person using a wheelchair or other mobility aid to enter and close the door, use the fixtures, reopen the door and exit.
  • Doors may swing into the clear space at any fixture if the maneuvering space is provided.
  • Maneuvering spaces may include any knee space or toe space available below bathroom fixtures.
  • Where the door swings into the bathroom, there shall be a clear space (approximately 30 inches by 48 inches/762mm by 1219mm) within the room to position a wheelchair or other mobility aid clear of the path of the door as it is closed and to permit use of fixtures.

Doors

  • Regardless of the occupant load served, exit doors shall be capable of opening from the inside without the use of a key or any special knowledge or effort.
  • Every required exit doorway shall be of a size as to permit the installation of a door not less than 36 inches (914mm) in width and not less than 80 inches (2032mm) in height.
  • When installed in exit doorways, exit doors shall be capable of opening at least 90 degrees and shall be so mounted that the clear width of the exitway is not less than 32 inches (813mm).
  • For hinged doors, the opening width shall be measured with the door positioned at an angle of 90 degrees from its closed position.
  • Where a pair of doors is utilized, at least one of the doors shall provide a clear, unobstructed opening width of 32 inches (813mm), with the leaf positioned at an angle of 90 degrees from its closed position.
  • When an automatic door operator is utilized to operate a pair of doors, at least one of the doors shall provide a clear, unobstructed opening width of 32 inches (813mm), with the door positioned at an angle of 90 degrees from its closed position.

Effort to Operate Doors

  • The maximum effort to operate doors shall not exceed 8-1/2 pounds (38 N) for exterior doors and 5 pounds (22 N) for interior doors, such pull or push effort being applied at right angles to hinged doors and at the center plane of sliding or folding doors.
  • Compensating devices or automatic door operators may be utilized to meet the above standards.
  • Where fire doors are required, the maximum effort to operate the door may be increased to the minimum allowable by the appropriate administrative authority, not to exceed 15 pounds (66.72 N).
  • Hand-activated door opening hardware shall be centered between 30 inches (762mm) and 44 inches (1118mm) above the floor.
  • Latching and locking doors that are hand-activated and which are in a path of travel shall be operable with a single effort by lever-type hardware, panic bars, push-pull activating bars, or other hardware designed to provide passage without requiring the ability to grasp the opening hardware.
  • Locked exit doors shall operate as above in egress direction.
  • The bottom 10 inches (254mm) of all doors except automatic and sliding doors shall have a smooth, uninterrupted surface to allow the door to be opened by a wheelchair footrest without creating a trap or hazardous condition.
  • When narrow frame doors are used, a 10-inch-high (254mm) smooth panel shall be installed on the push side of the door, which will allow the door to be opened by a wheelchair footrest without creating a trap or hazardous condition.

The best advice we can give restaurant and bar owners is be very careful. If you are reading this book and are about to open a new restaurant, make sure your contractor knows this stuff. Ask him or her about these requirements and how up to date they are on how the build-out should be. If they build it wrong, you are liable as the business owner not them. The onus is on us to make sure we do the build-out correctly, from the beginning. So measure yourself the access points, door pressure, and find out how many handicap spots are required in your city if you are building the entire lot. You may also need to create empty space in the parking lot in and around the handicap spaces in addition to the city’s minimum handicap allotment. Measure your doors by purchasing a door pressure gauge from Amazon. They aren’t cheap, but they are cheaper than a potential lawsuit from these bloodsucking money-hungry lawyers and their blackmailing clients.

References:

  • Americans with Disabilities Act Architectural Barrier Removal and Compliance Manual: A Simplified Approach to Accessibility, by James E. Jordan
  • Your Rights in the Workplace: An Employees Guide to Fair Treatment, by Barbara Kate Repa
  • The Death of Common Sense: How Law is Suffocating America, by Philip K. Howard
  • News10/KXTV

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