Technical Infeasibility and Unreasonable Hardship
“Crema Coffee in San Jose closes due to ADA lawsuit.”
“Squeeze Inn shuts its doors due to drive by lawsuit.”
“ADA lawsuits hit dozen of local businesses”
“Jointed Cue Billards closes. Owners face $80,000 ADA lawsuit”
We see these headlines over and over again and each one is like a punch to the gut. Our goal when we began offering accessibility services and access consulting in 2014 was to help every business owner avoid ever facing a construction related ADA lawsuit.
Unfortunately, almost 6 years later and these headlines are still prevalent. According to data compiled by Seyfarth and Shaw every year, the number of ADA lawsuits in California continues to climb year after year.
While we would love for the lawsuits to end, we also know that the ADA just celebrated its 30 year anniversary and there are still many businesses that are not compliant with both federal and state regulations and codes for accessibility. It makes many business owners wonder if there is a middle ground somewhere.
The good news is that there are options that help protect businesses from lawsuits while still meeting the needs of the disability community. Today we want to specifically talk about technical hardships and why they are important to consider in your ADA issues.
In the case of many small businesses, and unfortunately they are the ones most impacted by these lawsuits, there are ways to upgrade their property and avoid lawsuits that can fit into even small budgets. However, there are also large scale upgrades that may be required and come with a larger price tag. When we ask clients who have previously faced an ADA lawsuit why they waited to remove architectural barriers we get 1 of 2 answers.
They either did not realize anything was wrong or
They assumed it would be too expensive to fix.
These are both common issues but unfortunately don’t hold up in a court of law and often get owners in trouble when facing legal matters. The best solution to fight off ADA lawsuits is a good proactive approach.
The first step is always getting a CASp report from a quality CASp who will provide you with usable data to make your site and building completely compliant with applicable codes. That eliminates the first problem of not knowing what the issues were that needed your attention.
Once you know what architectural barriers to access are present you can start to make a plan to remove those barriers. Some items may be as small as restriping your parking or installing a $100 sign. However, we know that there are larger projects that many businesses cannot afford to tackle right away. For that, it is important to schedule your improvements based on your budget. If it will take you 10 years to save enough money to build a compliant ramp then you simply make sure you are making small investments over those 10 years while saving that money. As long as it is documented what steps you are taking, you will still fall under the qualified defendant status and have greatly reduced fines for making improvements.
There are two claims a business can make if they are unable to remove an architectural barrier. The first, technical infeasibility, is very rare and only applies when the structural integrity of the building or site would be in jeopardy if the modifications were made or if the modifications simply cannot be made without altering the entire structure. A great example would be if the interior of an elevator did not meet the minimum clearance requirements. The only way to remove the architectural barrier would be to expand the elevator shaft.
The second claim a business can make is unreasonable hardship. This claim needs to prove that the cost of the removal of the barrier greatly outweighs the budget available. A CASp alone cannot make this decision. You must consult your bookkeeper/CPA and have documentation in place before a lawsuit or grievance is filed against your business.
In the case of Crema Coffee that recently closed, we believe that if they had been working with an accessibility consultant and creating a plan, they could have claimed unreasonable hardship when they first opened in 2007. However, even that would only have applied for so long. The burden of accessibility is ongoing for the business and it’s owners. Since Crema Coffee had been successful for many years and opened other locations in the area, it would no longer have been considered an unreasonable hardship 12 years later to have invested the money to install a ramp. One article stated the estimated cost of installing a ramp was $100,000. In the case of a brand new coffee shop in 2007, that would definitely fit the bill of unreasonable hardship. However, the owners also could have been working toward that improvement. If they had saved $694 a month since opening they would have been able to build the ramp. If that was unrealistic, they could have saved less each month and had a timeframe established to install the ramp prior to the lawsuit that would have allowed them to resolve the legal issues and keep their doors open.
So if you have a building that has no ramp to access the main entrance or any other barrier you believe may be too expensive to fix, it is much better to be proactive and put a plan in motion than to sit by and hope no one notices.
Call us today and see how we can help you resolve your accessibility concerns, even if you don’t think you have any, it's always better to be safe than sorry.
Also, if you have not heard about CalCAP, check out the grant available for small businesses to make accessibility improvements. You can find all the information here: https://www.treasurer.ca.gov/cpcfa/calcap/ada/summary.asp