ADA Compliance and Defense Blog
ADA Compliance perspective
With the increasing importance of ADA compliance for hotels, restaurants, and other public places, we are lucky to have a team that can help set up ADA compliance approaches and programs to minimize later issues on new construction, rehab, and defense of ADA claims from the government or private litigants. Our team is led by Marty Orlick, a seasoned veteran who has seen ADA issues tested in defending more than 300 ADA lawsuits, many of them involving hotels, restaurants and hospitality facilities.
Marty stresses that our role is not avoid the ADA, but rather to help clients interpret the often murky requirement to understand what their obligations are and develop reasonable plans for compliance that are likely to meet the test of future challenge.
We also help owners, operators and others effectively deal with litigation brought under the ADA.
After talking with Marty and his team, here is what is going on with the ADAAG proposals and what we think it means.
Pending changes to ADAAG withdrawn pending further review
On January 20, 2009, in a memo to all heads of executive departments and agencies, Chief of Staff Rahm Emanuel communicated President Obama’s directive that all proposed or final regulations not yet published in the Federal Register were to be withdrawn, pending the review and approval by the new administration. This regulatory review includes the proposed new guidelines under Title III of the Americans with Disabilities Act (ADA) of 1990.
Background – New Guidelines Proposed by the Access Board
The ADA was signed into law on July 26, 1990, by former President George H.W. Bush. Former President George W. Bush was intent on updating the new ADA guidelines while he was in office, as part of his father’s legacy.
The proposed changes are to the American with Disabilities Act Accessibility Guidelines (ADAAG) which were adopted by the Department of Justice (DOJ) in 1991, and which have been changed from time to time over the years.
The proposed new guidelines contain the most sweeping amendments to date. Since 2004, the Access Board — which is charged with developing and promulgating design accessible requirements for the built environment, transportation facilities and telecommunications equipment — has been involved in a substantial review, analysis and development of the guidelines, in an attempt to address the significant technological, legal and practical changes that have occurred over the years.
The proposed changes to ADAAG were released by the DOJ, which is charged with enforcing the ADA, and published in the Federal Register on June 17, 2008. The Access Board and the DOJ received comments from government agencies, technical experts, architects, communities, state and local officials, and industry groups, such as the American Hotel & Lodging Association which offered substantial input.
Changes Would Affect Hotels, Restaurants, Retail, Financial Institutions, Recreational Facilities, Fitness Centers and Others
If enacted as proposed, the new guidelines could cause all businesses which are open to the public — particularly hotels, restaurants and retail properties — to build new facilities to standards and to retrofit their properties regardless of whether they are in compliance with current ADA guidelines.
It may also force changes to be made to websites so that online shopping as well as making hotel and restaurant reservations can be fully available to vision impaired customers. More technical refinements are proposed for financial institutions such as “talking ATM’s” and more stringent requirements for online banking.
New guidelines are also proposed for the health and fitness industry and recreational facilities. For others, like utility companies, new requirements for public rights-of-way could cause significant changes to be made.
Safe Harbor Provision
A significant proposal by the DOJ is the “safe harbor” for certain existing Title III-covered facilities. The safe harbor proposal, if adopted, exempts certain covered facilities from barrier removal obligations under the proposed guidelines if the facilities comply with the 1991 Standards. A safe harbor provision would mitigate the impact of the proposed regulations on existing facilities.
Stay Tuned
Stringent new ADA rules that require significant capital expenditures, coupled with the current financial crisis, may be the last straw for many businesses.
We don’t know when the new ADAAG will go into effect and whether the guidelines will be any different than the last proposal. We hope so.
Martin H. Orlick is one of the top ADA defense lawyers in the country. He has helped hotels, restaurants, retailers, shopping centers, banks and other commercial property owners defend more than 600 ADA cases. In addition to defending lawsuits and governmental investigations, Marty’s team of ADA specialists focuses on enterprise-wide ADA compliance and litigation prevention, including facilities, website and operational compliance. Marty is the Chair of JMBM’s ADA Compliance & Defense Group, a Partner in JMBM’s Real Estate Group, and a member of the American College of Real Estate Lawyers (ACREL). For more information about ADA compliance and defense, contact Marty Orlick at 415.984.9667 or morlick@jmbm.com.