A common misconception among business owners is that only the landlord is responsible for providing accessibility. The fact of the matter is, since the store front is the most visible aspect of a business property, most often only the business owner gets slapped with an accessibility lawsuit. However, anyone who has ever been responsible for any part of a commercial location shares in its liability. Anyone who has done construction, occupied, sold, leased or managed a business location is potentially liable. Even the architect is liable for buildings built after 1991. Landlords are always responsible because most “triple net leases” do not cover renovations; only repairs. On the other hand, tenants are always responsible for providing access to their occupied portion.
An example might help: An improperly placed accessible parking space can generate almost thirty violations. Failure to have any accessible parking at all can be more than forty violations. At $4000 for each and every violation, just that one issue can bankrupt a small business. The complexity of the ADA requires an expert to investigate the site. But because all accessible elements are visible to the unaided eye, neither landlord nor tenant is safe. Responsibility for the ADA is much like asbestos or a leaky roof… waiting only delays the inevitable.
In a worst case scenario, suit will be brought against a business for not being compliant. Time and money spent on a lawsuit is not recoverable. Defending against accessibility lawsuits is difficult because almost all of the fixes are considered “readily achievable.” Given that the ADA has been around for almost two decades, judges tend to throw the book at non-complying businesses.
So what is the best thing to do? The first step is to hire an expert to evaluate your site. ADA laws change all the time and knowing the liability of a site (before or after you lease, after you’ve made renovations or even if you’re only considering to do renovations) allows you to take corrective measures before things get out of hand. What was allowed five years ago may no longer be. At the very least, an ADA expert can tell you what the quickest steps are to limit your liability so you can stay in good shape.
Yours Truly Accessibility Corporation has years of experience providing accessibility inspections and reports. Got questions about accessibility? Send an email to firstname.lastname@example.org or call us at 1-866-982-3212.