Issue link: https://read.dmtmag.com/i/146145
If the park has "public accommodations" which have "barriers" to "access," then the next consideration is whether the "removal of the barrier" is "readily achievable." Remember that these barriers apply to all sorts of disabilities, including sight and hearing, and not just accessibility for wheel chairs. The ADA generally defines "readily achievable" as easily accomplished and able to be carried out without much difficulty or expense. 42 U.S.C.S. § 12181(9). Federal courts have developed several factors in determining what is "readily achievable": (1) nature and cost of the removal; (2) overall financial resources of the facility or facilities involved; (3) number of persons employed at such facility; (4) effect on expenses and resources; (5) impact of such action upon the operation of the facility; (6) overall financial resources of the covered entity; (7) overall size of the business of a covered entity with respect to the number of its employees; (8) the number, type, and location of its facilities; (9) type of operation or operations of the covered entity, including composition, structure, and functions of the workforce of such entity; and (10) geographic separateness, administrative or fiscal relationship of the facility or facilities in question to the covered entity. Colorado Cross Disability Coalition v. Hermanson Family Ltd. Pshp. The park however will bear the ultimate burden to prove that the barrier removal is not readily achievable. This will be determined on a case-by-case basis for each individual park. The 1991 Regulations provide examples of steps that may be "readily achievable" according to the Department of Justice. So, how do you lessen the chance of your park becoming a "target" of an ADA lawsuit? There are no "bright lines" as to whether a park has ADA issues or not. Since an "ounce of prevention is worth a pound of cure," the prudent park owner might be best served by hiring a knowledgeable ADA Consultant to review and comment on whether the park has any ADA issues and how they should or could be addressed. California has implemented a Certified Access Specialist ("CASp") training and licensing program, which provides incentives (i.e., some protections from lawsuits) for property owners who conduct a CASp inspection. Another, and more conservative approach would be to simply make sure that all of the park facilities are "ADA compliant," even if, technically and legally, you may not be required to do so. Little things can make a big difference in your park. Examples of ADA compliance include: levers on the entrance doors; levers on bathroom doors and fixtures; of an ADA claim since the ADA claim is a civil bathroom fixtures at proper height; proper bath- rights claim. We suggest all park owners speak room accessories; doorways that accept wheel- with their industry insurance broker about poschair access; bathrooms that accept wheelchair sible insurance protection. access; counters at correct height for wheelchairs users; alternatives (ramps/elevators) to T J steps into the clubhouse and office; acceptable transitions (no lips) at doorways (interior and exterior); accessible parking and van access John Pentecost is a partner with Hart, King & Colspaces; acceptable transitions (commonly re- dren, a law firm located in Santa Ana, California. ferred to as "curb cuts") to sidewalks at street His practice focuses on representation of mobilejunctions and accessible parking; and acceptable home parks and recreational vehicle parks, as well inclines from parking areas to the park's "pub- as park owners, throughout the State of California. lic accommodations," to name a few. He can be reached at jpentecost@hkclaw.com. Your ADA consultant can walk your park Chris Elliott is also a partner with the firm and speand let you know what facilities do and do not cializes in commercial, retail and industrial property comply with ADA. Making the necessary im- rights. He has handled multiple ADA claims for provements will be money well spent, and po- high risk targets for those claims, such as restautentially "ward off' expensive litigation, which rants, retail stores, banks, etc. litigation, in all probability, will not be covered by your general liability insurance policy. You might also want to turn this into a "PR plus" for your park - i.e., tell your residents about the improvements after they are done! However, such actions may not be right for every park. The park owner should first discuss ADA considerations with its legal counsel to determine what the right course of action is under the particular circumstances. In addition, insurance is playing an ever more important role in protection against ADA NOW claims. More and ABLE more often, ADA AVAIL plaintiff lawyers are adding causes of action for negligence NEW INSULATED SKIRTING and alleging bodily injury to trigger the from EVERLOCK SYSTEMS potential for coverage under the park owners CGL policies. Our recom3 New 1" Neopor ® EPS Foam Provided by BASF Provides mendation is to R7 Insulation Factor tender any ADA 3 Reduce Foundation Energy Loss up to 22% - Save $ claims to your carrier 3 Easy Installation – No Additional Framework Required immediately. In ad3 Newly Constructed Rail System available. Options include: dition, some insurTop & Bottom Rails and Hardware ers now offer what is Call us for more information! known as "tenant discrimination" insurance, which may 6676 GunPark Drive, Suite F • Boulder, Colorado 80301 protect the park (303) 530-1566 • Toll Free 1-800-843-3336 owner in the event View back issues of THE JOURNAL online at www.journalmfdhousing.com SYSTEMS See Website for more info: www.everlock.com No. 14 on Get It Quick Page AUGUST 2013 23 THE JOURNAL