Issue link: https://read.dmtmag.com/i/107993
LEGAL CORNER The Americans with Disabilities Act Ongoing Issues for C-Stores H. Dean Mooty, Jr., Mooty & Associates, P.C. T hey seem to come in bunches, but only every few years. Lawyers writing letters to public establishments such as restaurants and yes, convenience stores, claiming that their facilities are in violation of the Americans with Disabilities Act ("ADA"). A rash of such letters went through Birmingham a number of years ago and are currently running through the Montgomery market. The typical letter says the lawyer's client is handicapped and that they entered the convenience store and found certain non-compliant conditions which the letter then contends denied the person "reasonable access" to the facility. Ultimately, the letter says if the owner will fix the deficiencies and pay a sum of money to the attorney, suit can be avoided, and the matter will go away. If you get such a letter, what should you do? Certainly take it to your attorney, but my first advice is find a qualified contractor. Many of you will have such an individual or company that does or has done construction work for you, but find one that is qualified and specifically is familiar with the requirements of ADA. However much you may not like getting such a letter, and whether or not you choose to pay the Plaintiff's attorney anything, you will have to fix any non-compliant conditions; at least those that would be deemed to be "reasonable modifications." The law does have some constraints, and if the noncompliant conditions – typically in older structures – can't be remedied without major activities such as tearing down walls, you are typically not going to be required to take that type of corrective action. What are the typical non-compliant conditions found in convenience stores? Most of the non-compliant conditions alleged to exist in convenience stores involve the bathroom facilities. Bathroom doors are not supposed to have door knobs 18 OIL PROPHETS WINTER 2013 that require "tight grasping and/or pinching." That's why you will usually see doors with handles. The grab bar for the toilet has to be no less than a certain distance from the rear wall and must be a certain length. Similar requirements exist for the rear grab bar behind the toilet. Door openings have to be a certain width. Lavatory height, soap dispenser and paper towel holder heights must also be at a certain level. Water pipes under the sink must be insulated and covered. Mirrors must not be over a certain height. Recurring outside issues are ones including having not only the required ramp for wheelchair access into the building, but a level landing area at the top of the ramp of a certain size. The sign denoting handicapped parking has to be a certain minimum height, etc. These are just a few. All of these are set forth in the Code of Federal Regulations at 20 C.F.R. Section 36.508, and your lawyer can provide those to you. For all their bulk, the requirements are fairly legible and understandable. Consequently, however much you might not like getting one of these letters, and as I say, whether or not you choose to pay the lawyer anything, you will be required, if suit is filed, to make the necessary repairs. There is some good law out of the 11th Circuit Court of Appeals, and in particular, the State of Florida, that essentially says if you make the required repairs, any further claims of the Plaintiff are moot. The draw to the Plaintiffs' lawyers to these claims is the statute has an attorney fee provision which allows the recovery of an attorney's fee if successful. Usually the monetary demand in these letters is relatively small since it is not the attorney's intention to have to file a federal lawsuit and litigate it to recover a fee. The lawyer wants to put the property owner in the position to believe it's better to go ahead and pay something now without having to pay the cost of defending a federal lawsuit. Many marketers have told me they believed because their store was older that it was "grandfathered in" and not