One of the largest challenges that I face as an ADA Defense Attorney is that there are numerous myths and misconceptions about ADA compliance. The purpose of this blog post is to discuss one common myth.
Only Businesses that are Open to the Public Need to Comply with the ADA
The statement above is 100% accurate. Only places of “public accommodation” need to comply with ADA rules and regulations. The entire purpose of the ADA was to ensure that public places are equally accessible to persons with disabilities. Accordingly, a place must be open to the public to trigger ADA liability.
The opposite is also true. Places that are not open to the public are not required to comply with the ADA. As I will discuss below, a business can have public and non-public areas. The ADA rules are going to be different depending on the classification.
This is Where it gets Complicated
The confusing follows now that we understand that only public places are required to comply with the ADA. I receive several calls a month from a business owner being sued for ADA violations that claims that his or her business is not “open the public.” In my years of defending business owners, that statement has never ended up being true.
First, let’s discuss a few examples of businesses that are not open to the public. Think about a warehouse that just stores parts or materials. As long as customers and members of the public aren’t invited to the warehouse to transact business, the warehouse does not need to comply with the ADA. The same rule applies to a private office that is staffed solely by employees. As long as members of the public aren’t allowed into the office, there can be no ADA liability.
Next, let’s discuss a few examples of businesses that often do not consider themselves to be “open to the public” but who actually are. The most common excuse is that the business owner tells me that they are only open on an “appointment only” basis. This is still a public accommodation! A disabled person could easily ask for an appointment as easily as an able-bodied person could. Therefore, “appointment only” businesses still have to comply with the ADA. Another common excuse is that the business “does most of its business online” or “we always go our customer, they never come to us.” After doing some prying, I usually end up discovering that those statement’s aren’t entirely accurate. As long as a member of the public is allowed to visit the facility, ADA rules are triggered.
If your business is truly “closed to the public,” there is no ADA liability. But as you can see, that analysis isn’t always straightforward, and it requires an honest assessment in order to be an effective shield to liability.
ADA Compliance isn’t All-or-Nothing
A business facility can have components that are open to the public and areas that are not open to the public. If a member of the public is allowed to a specific area of the facility, that area needs to be accessible. Therefore, ADA compliance is not required for areas of a business that aren’t open to the public.
The most common scenario are bathrooms. Bathrooms can be the most costly area of a business to retrofit for ADA compliance. However, most types of businesses are not required to provide restrooms. Generally, only places that serve food or are otherwise regulated by local health ordinances are required by law to provide restrooms.
As such, the easiest solution to an inaccessible bathroom is to simply close the restrooms to the public. This only works if you are not required to provide restrooms to patrons. But most of my clients are not required to do so. In other words, a $10 sign from Home Depot can save you a $50,000 bathroom remodel.
I represent business owners and landowners throughout the State of California that are sued for ADA violations. Please call my office at 916-333-2222 if you have any questions about ADA litigation.