Opinion: Lawsuits aside, non-ADA compliance is still discrimination

An organization calling itself Advocates for Individuals with Disabilities has filed about 1,500 lawsuits this year and sent another 42,000 warning notices about Americans with Disabilities Act non-compliance, drawing the ire of small businesses across the Valley. Most notices concern parking lot violations such as the lack of a van accessible space or inaccurate sign height for accessible parking.

Phil Pangrazio

Phil Pangrazio

AID typically gives businesses 30 days to respond after which it may file suit. Responding businesses are paying settlements between $3,500 and $7,500 to avoid litigation and attorney fees as well as the few hundred dollars to make the corrections. Many businesses claim they don’t understand what the violations are for. Those who have settled claim that AID never returned to verify the issue was resolved, leaving them open to future litigation.

Businesses feel extorted by a disingenuous plaintiff and attorney who never actually intended to patronize the business. It appears that AID is driving from one ZIP code to another, photographing parking lots at shopping centers, strip malls, small property owners, and other “mom & pop” types looking for ADA violations.

This is a real dilemma for the disability community. Yes, we want more access to business, so ADA enforcement is a good thing, especially for businesses that have ignored compliance for 26 years. Alternatively, the high volume of lawsuits is giving the ADA a black eye and businesses are shamelessly fighting back.

But ADA is not the problem. Non-compliance is.

Without blatant non-compliance, AID would not exist. AID discovered what we’ve known for a long time: many businesses simply ignore ADA. The parking-lot lawsuits are “easy pickins.”

Personally, I don’t condone AID’s actions. Their business model is gaming a lawful process, and it’s likely disingenuous and exploitative.

The Arizona Attorney General’s Office recently stated that AID is circumventing the state enforcement process by claiming to “investigate supposed violations of the federal ADA and the AZDA, while in reality apparently engaging in ‘trolling’ litigation tactics designed to induce defendants into quick pre-suit or post-complaint settlement that merely enriches the plaintiff.”

AID and its founder, Peter Strojnik, claim to be disability-rights champions. I won’t attempt to judge motives. But if the AG successfully prevents these suits from going forward, thousands of businesses will be off the hook for their violations.

The fact is, the attention to ADA compliance is a wake-up call to owners of places of public accommodation as covered by Title III of the law.

Businesses really need to become educated about their obligations under the law. AID has focused on parking lots, but what about getting in and around once inside a business?  Free technical assistance is available to the public on complying with Title III requirements. There are many publications, telephone information lines and web sites with numerous technical assistance materials.

Proponents of weakening the ADA with a notification or “time to cure” period often argue that plaintiff’s charges are trivial. If accessibility violations are truly minor, it would not be difficult to quickly fix the problem and resolve the issue with minimal attorneys’ fees.

Sign height is a typical example. “Signage may sound minor to some, but people with disabilities look for signage that a facility can accommodate them,” said J.J. Rico, executive director of the Arizona Center for Disability Law. “If accessibility isn’t readily apparent, they’re moving on.”

Properly marked signage in a uniform place makes it much easier to go to the store or the movies. “Van-accessible spaces are similarly key for people who use wheelchairs. Again, I think some folks think it’s not a big deal,” Rico said, “but if there’s not ample space for a wheelchair ramp to come down, the person can’t get out of her vehicle.”

Modifying the ADA with a “time to cure” period would result in much less voluntary compliance and give the overwhelming advantage to those ignoring the law.

Several ADA provisions protect businesses from unreasonable requirements. For instance, the ADA does not require any action that is not “easily accomplished and able to be carried out without much difficulty or expense.”

The federal government also encourages voluntary compliance by providing financial assistance to small businesses making required changes to older facilities.

On a personal level, I’ve been disabled and a wheelchair user for 38 years. I’ve experienced life before and after the ADA and I would never want to return to pre-ADA days.

In light of the recent AID lawsuits, everyone needs to understand that for a person with a disability trying to access the community, non-ADA compliance should not be perceived as frivolous, minor or trivial. Rather, it is what it is … discrimination!

Phil Pangrazio is President and CEO of Ability360

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