American Disabilities Act Inspections

More than 50 million Americans—18% of our population—have disabilities. In addition, approximately 71.5 million baby boomers will be over age 65 by the year 2030 and will be demanding products, services and environments that meet their age-related physical needs.

When many people think of the Americans with Disabilities Act (ADA), they automatically think of handicapped parking. ADA actually covers far more, including accommodations for people with sight, hearing and mental disabilities. The ADA is a civil rights law that prohibits discrimination against individuals with disabilities in all areas of public life, including jobs, schools, transportation and all public and private places that are opento the general public. The purpose of the law is to make sure that people with disabilities have the same rights and opportunities as everyone else.

As commercial and home inspectors, we should know about compliance and what is needed to ensure that a property meets ADA standards. Obviously, this exceeds the ASHI Standard of Practice and, if requested to inspect for ADA compliance, one can charge for the extra service.

I stumbled into doing ADA inspections when the owner of a restaurant I had previously inspected was being sued because the restaurant was not compliant with ADA regulations. What I did not know at the time was that the government does not have an enforcement group for ADA compliance. Building departments only enforce ADA requirements in new construction. Existing buildings—even when they are being updated—are not required to install ADA-compliant accommodations. The only way ADA accommodations are added to buildings is when the owners or tenants add them voluntarily or when they are forced to add them as the result of a lawsuit.

ADA lawsuits are a cottage industry in California, Arizona, Florida and Texas. In some cases, it’s been reported that lawyers will hire individuals with disabilities to visit a targeted business, buy an item and uncover an ADA-related issue that can be called out. The lawyer will then file a lawsuit and encourage a settlement. In other cases, the lawyers will do “drive-by lawsuits.” Examples of this were reported recently in a “60 Minutes” news segment. The lawyers will file a suit for ADA compliance and attempt a quick settlement for under $100,000. In most cases, it’s cheaper for the business to settle rather than bear the cost of a legal defense when they know they will lose.

In the case of the restaurant I inspected, the owners wanted to know what they needed to do to become compliant. I did some research, identified the areas that needed changes and worked with the shopping center to bring the exterior area under compliance as well. Once the work was done, I did a re-inspection and provided a report that went to the courts, showing that the restaurant was now compliant with the current ADA requirements.

Looking at the ADA environment, I realized that these specialty inspections were complicated, but that the criteria was pass/fail. With the ADA requirements listed in the 2010 ADA Standards for Accessible Design (https://www.ada.gov/regs2010/2010ADAStandards/ 2010ADAStandards_prt.pdf), it is easy to determine whether a property is in compliance or not. The challenge is matching up the area that you are inspecting with the relevant section of the ADA Standard. The ADA requirements are 275 pages long, so until you are familiar with them, you will be doing a lot of paging or scrolling through them.

Once you are familiar with the inspection components, the physical inspection will go smoothly. The ADA Standards are specific and there are no gray areas; the components are either in compliance or not. For example, with parking, there must be at least one van-accessible parking slot for every 25 parking spaces. The space must be 96 inches wide with a 96-inch aisle. There must be a sign that is at least 60 inches high marking the space. If the aisle is only 92 inches wide, then it’s not in compliance. It’s not up to the inspector to consider the owner’s explanation of why it’s not compliant; instead, the inspector can make suggestions on how the area can be made compliant.

In the case of the restaurant I inspected, the men’s room was clearly too small to be an ADA-compliant bathroom, but the women’s room was oversized. I suggested that they do away with the men’s and women’s room markings and make the women’s room the restroom for people with disabilities. This saved the owners from having to move around walls to make both bathrooms compliant. With other clients, it’s not always that easy. I worked with the owner of another restaurant that had concrete steps to get to the bathrooms. For that restaurant, there was no easy solution but to reconfigure the floor plan of the restaurant.

Many business owners are not familiar with the need for ADA compliance. There are two areas of compliance: Title I and Title III. Title I regulations pertain to employees. The purpose is to ensure that employers do not discriminate against an employee on the basis of his or her disabilities, and ADA regulations require companies to provide reasonable accommodations to allow employees to perform the duties of the position. This basically means that, even if a business does not have a storefront or showroom, it still needs to have ADA accommodations for its employees. Title III compliance is targeted toward businesses that are open to the public, such as a store, gym or restaurant. Title III calls for businesses to make “reasonable efforts” to accommodate people with disabilities. This sounds like a gray area for the inspector, but it’s not. As ADA inspectors, we inspect for compliance to the current standard. It’s not up to the inspector to judge what’s “reasonable.”

If you are an inspector who does commercial inspections, consider making the ADA portion an add-on. Once a client is educated on the need to be compliant, they will typically request the inspection with the additional ADA component. If you advertise that you can perform ADA inspections, expect to get the occasional call from a business owner when he or she is hit with a compliance lawsuit.

Rick Bunzel is the principal inspector with Pacific Crest Inspections and ASHI Certified Inspector #249557. He holds a B.A. in Business Marketing and, in the past, he chaired the marketing and public relations committees for a national home inspection organization. Locally, he is active in the North Puget Sound Board of Realtors and is an officer with the Mt. Erie Fire Department in Anacortes, WA. Find him online at http://www.paccrestinspections.com.

Sources Consulted
• Santos JV, Villamor M. Latest California ADA Lawsuit Reform Attempt:
“Watered Down Solution.” Posted on Seyfarth Shaw, ADA Title III. News and Insights, May 25,2016.
http://www.adatitleiii.com/2016/05/latestcalifornia-ada-lawsuit-reform-attempt-watered-down-solution/.

• Biscobing D. Reporter’s Notebook: The latest in ABC15’s ADA lawsuit investigation.
Posted on ABC15 Arizona. October 4, 2016; updated December 19, 2016.
http://www.abc15.com/news/local-news/investigations/reporters-notebook-the-latest-in-abc15s-ada-lawsuit-investigation.

• “60 Minutes.” What’s a “drive-by lawsuit”? Posted December 4, 2016, on www.CBSnews.com.
Correspondent, Anderson Cooper; producers, Katherine Davis and Sam Hornblower.
http://www.cbsnews.com/news/60-minutes-americans-with-disabilities-act-lawsuits-anderson-cooper/.

• U.S. Department of Justice. 2010 ADA Standards for Accessible Design. September 15, 2010.
https://www.ada.gov/regs2010/2010ADAStandards/2010ADAStandards_prt.pdf.