Current ADA Laws are Not Being Enforced
All too often I go out and complete an ADA accessibility inspection and find a significant number of discrepancies. Even on buildings no more than 2 years old! Current ADA Laws are not being enforced. No wonder the disabled file lawsuits about the lack of access.
Yet, in a post by Seyfarth/Shaw, a new Ohio law will require notice and opportunity to cure as a prerequisite for a plaintiff’s recovery of attorney’s fees in physical accessibility [ADA] lawsuits. This OH law is similar to H.R. 620, which would have prohibited a plaintiff from filing a federal ADA lawsuit based on failure to remove an architectural barrier unless the plaintiff has first given the businesses notice of the alleged violations and an opportunity to provide a plan to address them. H.R. 620 is still waiting a sponsor in the U.S. Senate. These bills were designed to prevent drive-by lawsuits.
The passage of accessibility laws over the last several decades has allowed people with disabilities to become increasingly able to participate in and contribute to our society. Ohio HB 271 and H.R. 620 threaten to erode that progress, by removing much of business owners’ incentive to voluntarily comply with Ohio and federal accessibility laws.
According to the Ohio ACLU, Ohio HB 271 gives those who are breaking accessibility laws, even those knowingly doing so, up to six months after receiving notice to continue violating the law without legal ramifications. Accordingly, some businesses may intentionally forego compliance with state accessibility laws, taking their chances that no one will complain.
Business owners have a responsibility to stay knowledgeable of and comply with a host of legal requirements, including accessibility laws. This bill would unfairly shift the burden of ensuring compliance to the very individuals that these laws are supposed to protect.
Most people with disabilities who experience discrimination do not go through the burdensome and expensive process of filing suit. These bills have the potential to further discourage people from exercising their legal rights by imposing long waiting periods during which people with disabilities must continue to endure a barrier. Those disabled individuals who decide not to comply with HB 271’s and H.R. 620’s burdensome requirements are at risk of not being able to recover attorney’s fees. And frequently the disabled do not have a lot of money to fund legal fees.
In my opinion the reason these laws have been floated is because of poor enforcement of the existing 2010 ADA Standards for Accessible Design (2010 Standards). In my experience, most businesses do not comply fully with the 2010 Standards. If there was a concerted effort to enforce the 2010 Standards, there would be no need for these additional measures to prevent the drive-by lawsuits.
I am proposing an enforcement initiative whereby each state establishes a mandatory inspection of all new and existing state and local government facilities and all public accommodations and commercial facilities on an annual schedule by a certified accessibility inspector. These initiatives will be similar to the inspection programs for food services facilities. In food services, environmental health specialists work directly with food service operators to achieve safe and sanitary food handling practices through inspections, training and enforcement of the food service rules and regulations. It is common for employee level training to be available free of charge in each county health department every month.
Results of these inspections will be posted within each facility in a prominent location. Each inspection will be accomplished using a checklist of items applicable to the facility. The results of the inspection will be determined by the percent of items inspected that comply with the applicable standards. An acceptable grade will be 90%. Those facilities receiving a grade of less than 90% will be given 60 days to correct the discrepancies, after which a subsequent inspection will be conducted on the discrepancies from the prior inspection. The cost of the initial inspection will be covered in state/federal funding. The second, and subsequent inspections, will be paid by the facility that did not pass the initial inspection. Failure to remedy those items on the initial inspection will result in an appropriate fine in US dollars.
Those facilities receiving a grade of between 90% and 100% will be given a list of discrepancies to be addressed. In the subsequent inspection, a year later, these specific discrepancy items will be given special attention as well as normal checklist items. If those prior discrepancies are not remedied, that facility will be given 60 days to remedy all discrepancies before another inspection is completed.
The goal is 100% compliance with the 2010 Standards. This program will eliminate the need for additional laws and for drive-by lawsuits.