Issue link: https://read.dmtmag.com/i/414216
28 Oil Prophets LEGAL CORNER By the time you read this, P&CMA will have put on its October 15, 2014, seminar in Birmingham on the Americans with Disabilities Act ("ADA") in an effort to inform and educate the industry on the ongoing onslaught of lawsuits and letter demands regarding ADA non-compliance issues at your convenience stores. Time and space in this short article do not allow much detail but hopefully this will provide some basic information for those of you that were not able to attend the October 15 seminar and at least "red flag" for you what to look out for and how to respond if you are targeted by one of these ADA claims. The question I'm most often asked by marketers is, "My store is old, and I thought it was grandfathered in under ADA." There is no "grandfathering" of locations regardless of how old under the ADA. What there is, and I believe this to have led to the belief that older stores were grandfathered, is stores built before the passage of the ADA in 1992 are subject to different – and lesser – compliance standards than stores built after 1992 which are held to a strict compliance standard. In fact, as of March 15, 2012, new "2010 ADA Standards for Accessible Design" took effect. What does this mean? There are two standards of compliance under the ADA: the new construction standard and the alteration standard. The highest standard is applicable to new construction which governs public accommodations designed or constructed after January 26, 1992, and as modified further by the 2010 standard. Structures built before that time, i.e. structures built prior the enactment of ADA Title III, are subject to a "discrimination" standard that is defined as "a failure to remove architectural barriers…where such removal is readily achievable." Discrimination, therefore, on these older facilities prohibited by the ADA includes a private entity's "failure to remove architectural barriers" in existing facilities [pre- ADA] where such removal is "readily achievable." The magic words, therefore, are "readily achievable." The ADA defines readily achievable as "easily accomplishable without much difficulty or expense." In other words, there does not have to be strict compliance with the ADA for facilities existing before 1992. There is abundant case law that finds that there is no duty to correct technical ADA violations in certain facilities. The ADA is designed to assure "reasonable access" by persons with certain disabilities. In fact, Congress included in the ADA factors to be considered in determining whether removal of a barrier is "readily achievable." Those factors are: (1) Nature and cost of the action; (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 the covered entity; (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 work force for such entity; and (10) Geographic separateness, administrative or physical relationship of the facilities in question to the covered entity. What does all that mean as a practical matter? The example I often use, and many of you have heard me say this, is with regard to bathrooms in old convenience stores. Oftentimes, old stores have bathrooms – inside and outside - that are extremely small. There is no way, and in fact it would be impossible, to bring those The Americans with Disabilities Act and H. Dean Mooty, Jr. Mooty & Associates, P.C.