Apartment Management Magazine Americans With Disabilities Act (ADA): Compliance and Disabled Access Issues

Dispelling common myths about the ADA and your compliance responsibilities

By Anthony C. Guichard, President, ACR Concrete and Asphalt Construction, Inc.

ADA lawsuits are on the rise for a variety of reasons. Mainly because owners and tenants of properties or businesses that are open to the public are not dealing with and making corrections properly.

The most common reason we have filed multiple ADA lawsuits against property or business owners is due to failure to follow certain guidelines. Most defendants simply contact an asphalt contractor and ask them to make the fixes outlined in the lawsuit. This is a critical error because asphalt contractors do not necessarily have the expertise to ensure compliance with ADA rules.

Typically, a pursuit only calls for a few corrections when the CASp report can identify more than ten (or more) corrections. Only making the three corrections outlined in the lawsuit and not addressing the remaining corrections in the CASp inspection report leaves the landlord or tenant vulnerable to remaining corrections in the form of a second or a third trial. A CASp inspection report identifies violations of applicable accessibility standards, and a timeline for completing accessibility improvements within a reasonable time. Be sure to work with a qualified ADA expert such as ACR Concrete & Asphalt Construction, Inc..

Let’s take a moment and “DISSIPATING MYTHS” ADA surrounding lawsuits. Here are the three most common myths:

MYTH: My business does not need to be compliant as the building is old and therefore grandfathered.

• Do: There are no grandfather clauses. The “grandfather” is the notion that the ADA requirements do not apply to buildings constructed before the ADA was created. This, however, is not true. No matter how old or historically significant a building is, if it is open to the public, you must provide access to the goods and services you offer.

A CASp inspector can provide a written report to identify what needs to be corrected. A CASp inspector is a professional who has passed an exam and has been certified by the State of California to have specialized knowledge of the applicability of state and federal construction-related accessibility standards.

Myth: The building is owned by someone else, so I am not responsible for violations.

• Do: Compliance is not just the owner’s responsibility. The lessor and lessee are responsible for the accessibility of the public areas of a facility. If you rent or lease a facility, it is advisable to enter into an agreement with your landlord to determine who is responsible for providing and maintaining the accessible features of the facilities.

Leases and tenancy agreements must state whether the property has been inspected by a CASp inspector and, if so, whether the property complies with all applicable building accessibility standards.

Myth: Standards are constantly changing, making it difficult to stay compliant.

• Do: The construction standards of your installation do not change. The ADA has only been updated once in over twenty years. Although the California building code changes regularly, the compliance of your installation is determined by the building code in effect when your installation was first or last constructed. AMENDED. A formerly compliant facility is not rendered non-compliant because accessibility regulations and guidelines are updated; however, accessible functionality should be retained.

As you browse and talk to lawyers, CASp inspectors, etc., you will come across terms such as easily feasible, financially difficult, or technically unfeasible. These terms are often thrown around freely as defenses of how not to comply. Be very careful how you plan your defense strategy, as you could spend thousands of dollars defending your position.

At ACR Concrete & Asphalt Construction, Inc., we suggest you speak with a CREW which consists of an expert ADA attorney, an ADA designer/contractor and an experienced CASp inspector. The CREW approach to hiring each discipline separately is the CREW approach that works together, precisely and economically to reduce the time, cost and frustration in resolving your ADA lawsuit and protect you from second and third lawsuits. Hiring each professional individually can lead to delays, lack of coordination and more costs in addition to frustration and confusion.

At ACR Concrete & Asphalt Construction, Inc., we take our customers on the path to full compliance quickly and correctly the first time by providing documentation. The first step is a quality CASp report, and I can assure you that they are not all the same. From there, we perform a detailed site visit, conduct a survey to establish any barriers. Then we do a precise design with formal plans for the city to review and approve. Once all construction has been completed, we provide a signed city permit as final approval. After that, a second CASp re-inspection is performed to detect any errors.

Once we are done, the customer receives a history of this compliance starting with the following documents:

• Original CASp report to identify ALL corrections.
• Formal plans approved by the city.
• Permit card signed by city inspector approving construction work.
• CASp re-inspection to detect any errors and document all corrections.

By following ACR Concrete & Asphalt Construction, Inc.’s 4-step approach, which we provide to ALL of our clients, you will now have documentation with your city of when the property was brought into compliance. Without documentation, documentation, documentation, you can be vulnerable to multiple lawsuits.

Feel free to email a property’s address for a quick review and free analysis of how you need to go about bringing your property into ADA compliance. Be proactive and avoid the rapidly growing trend of ADA lawsuits.

Anthony C. Guichard is President and Founder of ACR Concrete & Asphalt Construction, Inc. He personally holds licenses; A, B, C-12, C-8 and C-32. ACR Concrete & Asphalt Construction, Inc. has significant experience in resolving complex ADA access compliance issues in the built environment. They are committed to improving access for people with disabilities by providing information, education, and access compliance solutions to commercial and rental property owners throughout the State of California. For more information, field investigations and/or CASP reports, call (714) 377-9569, (562) 472-7730 or (310) 773-7900 or visit their website at www.acrconcreteinc.com