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. 

ADA compliance guidelines are in constant flux. One example of the ever-adapting rules is truncated domes, also known as tactile paving or detectable warning surfaces.

Truncated domes refer to the (often yellow) set of raised bumps on a pathway or platform. Truncated domes alert visually impaired individuals of surface changes and other potential hazards.

If you are a business owner with truncated domes installed on your property, you may still be in violation of ADA standards!

A History of ADA Guidelines for Truncated Domes

Beginning in 1991, ADA guidelines required the domes to have a nominal 0.9-inch diameter, nominal 0.2-inch height, and nominal 2.35-inch center to center spacing.

Both the Federal Code and the State of California Building Code (CBC) changed in 2010. The California state requirements then specified that while the base diameter must be 0.9 inches, the top diameter must be 0.45 inches. The Federal Code also newly specified a 0.65-inch minimum base to base spacing between adjacent domes. This was in addition to the already existing center-to-center spacing requirements.

Even further, the 2010 CBC change required truncated dome sections to occupy the entire length and width of a curb ramp, doubling the amount of panels previously required.

Where are truncated domes required?

In California, the detectable warning panels must be installed in the following situations:

• Platform Boarding Edges
• Curb Ramps
• Islands or Cut-through Medians
• Bus Stops (between the pad and the road)
• Hazardous Vehicular Areas: “If a walk crosses or adjoins a vehicular way, and the walking surfaces are not separated by warning curbs, railings or other elements between the pedestrian areas and vehicular areas, the boundary between the areas shall be defined by a continuous detectable warning.” (CBC 11B-705.1.2.5)
• Reflecting pools: “The edges of reflecting pools shall be protected by railings, walls, warning curbs or detectable warnings.” (CBC 11B-705.1.2.6)

Individuals do not have to be visually impaired in order to file a lawsuit regarding the truncated domes. If the spacing or size of your truncated domes is not in accordance with the CBC, those who are mobility impaired can claim that the domes are acting as a barrier to their entry.

As you can see, ADA compliance is tricky and full of traps for the uninformed.

Due to the increase in ADA lawsuits filed in recent years, business owners should verify that their detectable warning systems are up to code.

I represent business owners and property owners throughout the State of California that are faced with ADA lawsuits. Contact my office at (916) 333-2222 if you have been served with an ADA lawsuit or ADA demand.

Real ADA lawsuit abuse reform has eluded California business owners for years. Will 2017 be any different?

Updated May 7, 2017: AB 150 didn’t even make it out of its first policy committee. Click here for an update.

Assembly Bill 150 to the Rescue?

On January 10, 2017, Assembly Member Devon Mathis introduced Assembly Bill 150. The bill seeks to address the overwhelming number of ADA lawsuits against small businesses. These lawsuits all allege that a business or property owner denied a disabled person access to a public accommodation.

AB 150 would give small businesses a chance to remedy their alleged ADA non-compliance before being liable for damages under California law.

Specifically, AB 150 proposes that two conditions must be met before an ADA plaintiff can file an action against a small business.

First, the plaintiff must provide the business with notice of the violation at least six months prior to filing the complaint, including all details of the alleged violation and specifying how the violation can be rectified.

Additionally, the defendant must fail to make a good faith effort to correct the issue within the six-month period before the plaintiff can proceed with lawsuit.

ADA Lawsuit Abuse Continues Unabated

This bill acts in response to the widespread criticism that existing ADA and disability laws are being abused.

Professional ADA plaintiffs claim that access for disabled persons is their primary motivation. I strongly believe that ADA plaintiffs are taking advantage of the system in order to make a profit.

In fact, just a few law firms are responsible for a majority of ADA lawsuits in California. My office has discovered over 2,500 ADA lawsuits filed just in 2016 alone.

The six-month grace period proposed by AB 150 would give small businesses the opportunity to improve access. The bill would also prevent prolific ADA plaintifs from profiting off of small business owners.

Does AB 150 Stand a Chance?

Forces in the California Legislature are strongly opposed to AB 150. In particular, the analysis of the Assembly Judiciary Committee raises concerns about the duration of the notice, believing six months to be exceptionally long. The Judiciary Committee also notes that the measure may unfairly single out disabled individuals by imposing additional barriers to the enforcement of their civil rights.

However, the Judiciary Committee’s analysis ignores the reality on the ground for business owners throughout the state. Opponents to AB 150 do not address the extortionary nature of current ADA litigation. These lawsuits can cost a business owner tens of thousands of dollars, even when the allegations in the lawsuit are minor and technical in nature.

While this bill, like similar ones before it, will almost certainly never become law, it is heartening that this issue continues to capture the attention of some lawmakers. Hopefully it won’t be long before a balance is struck between the civil rights of disabled individuals and the protection of small business from predatory ADA litigation.

Have you been sued by a predatory ADA plaintiff or law firm? Please call my office at (916) 333-2222 to discuss your options.

I follow ADA lawsuit abuse very carefully because ADA defense is a large part of my legal practice.

Recently, one prolific plaintiff’s ADA law firm changed their name. And it looks like the main attorney filing their lawsuits has changed as well.

Zacarach Best is a Plaintiff’s ADA Attorney

Previously, The Moore Law Firm signed all of their pleadings under Tanya Moore’s name. This makes sense because Tanya Moore is the principal owner of The Moore Law Firm.

Now that their law firm has changed names, it looks like Zachary Best is signing their complaints (new lawsuits).

This has created some confusion because it does not look like Tanya Moore’s name can be found on any new ADA lawsuits in Northern California.

Whether this is a coincidence or not is something that I do not know.

Zachary Best is Likely Suing You Over Alleged ADA Violations

Just like The Moore Law Firm, the Mission Law Firm and Zachary Best primarily practice plaintiff’s ADA litigation.

This means that the Mission Law Firm finds small businesses that have violated the Americans With Disabilities Act and then sue those small businesses.

Violations can be minor such as an incorrect door handle or lack of appropriate tow-away signage. On the other hand, ADA violations can be quite complex, including lack of accessible bathrooms or entrances.

Big or small, even a single minor technical violation of the ADA will give an aggressive ADA plaintiff standing to sue a business or landlord.

Only Compliance With The ADA Will Stop These Lawsuits

The California Legislature has shown absolute hostility to meaningful ADA reform. Since we cannot count on our elected leaders to reform our laws to prevent ADA lawsuit abuse, it is up to business owners and landowners to protect themselves.

I strongly recommend that all business owners throughout California obtain a CASp inspection of their property. These inspections will highlight accessibility issues. Don’t rely on “common sense” or “best efforts” to comply with the ADA – it just isn’t good enough.

ADA lawsuits are very serious business. If you have been sued by Zachary Best, the Mission Law Firm, or the Tanya Moore Law Firm, please call my office at (916) 333-2222 to discuss your options.

My phone has been ringing off the hook after 60 Minutes profiled ADA lawsuit abuse on Sunday. The program chronicled the trouble that drive-by ADA lawsuits are causing nationwide, with a special focus on Florida and California.

You can view the whole program here. It is worth a watch.

60 Minutes covered several important aspects of ADA lawsuit abuse, including the outrageous amounts of money that professional ADA plaintiffs are able to make by targeting small businesses. I am impressed that this issue is now receiving the natioanl attention that it deserves.

Tanya Moore is involved – of course she is!

No profile of ADA lawsuit abuse would be complete without looking into the practices of prolific ADA lawyer Tanya Moore.

60 Minutes uncovers Tanya Moore’s efforts to recruit plaintiffs to file these lawsuits. This is very troubling. Most law firms are contacted by potential clients asking for help. In Tanya Moore’s case, it appears that her law firm actively recruits disabled people to bring these lawsuits.

The math is simple: the more lawsuits Tanya Moore and her attorneys file, the more money they can make through settlements.

60 Minutes also uncovers a very interesting fact: two of Tanya Moore’s prior clients are now suing her firm for fraud, alleging that they did not receive money that was promised to them when they started bringing ADA lawsuits.

When does it end?

I get asked all of the time when I think that these laws will be changed to bring some balance back to disability access litigation. With national attention now focused on California’s disabled access laws, it will be interesting to see if the California Legislature takes any real action.

Past reform efforts, as I have discussed on this blog, have not made a dent to ADA filings. Until real reform is enacted, California business owners will have to factor these ADA lawsuits into their cost of doing business.

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If you have been served with an ADA lawsuit or need assistance bringing your business into full ADA compliance, please contact my office for a consultation. I can be reached at (916) 333-2222.