Issue link: http://read.dmtmag.com/i/414216
29 Oil Prophets LEGAL CORNER Your Convenience Stores bathrooms into compliance with ADA without literally knocking walls down and doing new construction. With old stores, that is simply not required. However, if one of those small, non-complying bathrooms was built in a store that was constructed after 1992, then the law would say it would have to be corrected because it is subject to the strict and higher compliance standard of post-ADA facilities. Again, this article is not the place to address specific deficiencies although with convenience stores, most of the deficiencies deal with the bathrooms and wheelchair accessibility to include things like the width of the door openings; the height and distance of grab bars from rear walls; sink height; mirror height; covering pipes under sinks so that someone in a wheelchair doesn't come in contact with exposed pipes with their knees or legs when at the lavatory; door handles, rather than door knobs; toilet paper dispenser, paper towel and soap dispenser heights; etc. You will also see deficiencies noted about not having the handicapped parking spaces properly marked as well as a myriad of others. The specific requirements can be found at 28 CFR (Code of Federal Regulations) Part 36. You can pull these up by simply Googling 28 CFR Part 36. Look especially for "2010 Standards for Public Accommodations and Commercial Facilities: Title III." Briefly, what do you do if you get sued for having a facility that is not ADA compliant or receive a demand letter with the threat of suit if you don't make corrections? There are lawyers in the state presently taking two different tacts in these cases. One group sends a letter often typically with pictures of your convenience store and its non- complying features which identify the corrections they insist must be made and ultimately make a monetary demand to avoid litigation. These demands have usually been in the $4,000 to $7,000 range. The other efforts in the state by one lawyer in particular include simply filing a lawsuit without any notice or opportunity to avoid same. The ADA does not have a damage provision, meaning someone who is disabled who is denied reasonable access to your convenience store because of non-compliant conditions, does not have the right to sue you and recover damages for those deficiencies. What they have the right to do is to sue you and have a court order that the non-compliant conditions be corrected, and then their attorney is entitled to recover its reasonable attorney's fees and costs. Not to be a cynic, but the reality is these cases are typically attorney-driven and, therefore, attorney fee-driven. I certainly don't intend to make light of non-complying conditions at convenience stores that might truly deny someone with certain disabilities reasonable access to those facilities. That's why the law was passed, and those conditions are required to be corrected and should be. However, what we're seeing are lawyers having one or two plaintiffs with disabilities that they "parade" around to convenience stores, oftentimes in a large geographical area, and send those persons in the stores they've probably never been in before and will never go in again and identify deficiencies and claim to have been denied reasonable access. Even worse, there is a strong indication that sometimes the lawyers will "scout out" convenience stores themselves, first identifying non-complying conditions, and then go get their designated plaintiff and send them in the store. I don't know about you, but that's not the way the system is supposed to work, and I don't think many federal judges are going to be sympathetic with these kinds of scenarios. Having said that however, it is important if you get sued or get a letter demand, that you independently identify what deficiencies you think legitimately exist and correct those as quickly as possible. The reason for that is several fold. First, you will ultimately have to correct non-complying conditions if "readily achievable" as I allude to above, but also, the quicker you correct those deficiencies, the quicker you cut off the plaintiff's lawyer's ability to continue to accrue time and expenses in the case that they will ultimately seek to recover. There is good case law under the ADA, largely out of Florida, that holds that once the non-complying conditions are corrected, the plaintiff's claims are essentially moot, or stated differently, the plaintiff lacks standing then to do anything further. What that means again as a practical matter is it serves to stop or limit the attorney's ability to build up a big fee that they can later recover. Finally, anytime you get a threat of a lawsuit or get served with a lawsuit itself, please put your insurance carrier on notice. It appears most carriers are covering these types of claims, although they can often be resolved quickly and typically within your deductible. When I say "cover" these claims, that would not typically mean paying for costs of corrections of non-complying conditions, but covering legal fees after any applicable deductible. Most importantly, call someone you know can help walk you through what corrections need to be made and how to deal with them in such claims or lawsuits.