June 1999

Managing:Legal Issues

Creating Access

Complying with the Americans With Disabilities Act doesn't require massive expense in most cases

BY WILLIAM H. DONAHUE JR.

A retail goldsmith in Colorado had been in business at the same location for many years. Unfortunately, his store is on the second floor of a building with no elevator. He knew he wasn't in compliance with the Americans With Disabilities Act, but he thought that to comply, he would have to spend a fortune or move – and neither option seemed worth it. What could he do?

He contacted Jean Batchelder, a facility management consultant in Loveland, CO, whose company, Access By Design, specializes in ADA accessibility compliance. He learned, to his surprise and relief, he didn't have to pack up and move to a ground-floor store and didn't have to install an expensive elevator. He learned what every retail jeweler needs to learn: exactly what the Americans with Disabilities Act does and does not require of retail establishments.

With Batchelder's guidance, he learned that because he had been at the same location since before 1993, he could work out an access-friendly business practice that included, among other things, showing merchandise in alternate locations. Advertising this practice was enough to bring him into compliance with the law.

Where To Get Local Help
To find out if your store complies with the law, contact your nearest ADA Technical Assistance Center. There is one in each of the 10 federal regions around the country. Find the one nearest you by calling (800) 949-4232. Ask for a copy of the "Readily Achievable Checklist for Existing Facilities." It contains an extensive list of the problems you may need to remedy and the alterations retail establishments built before 1993 may need to make to comply with the law. It also provides suggestions and options you may not think of. Expensive construction projects are rarely the only solution. The center will mail you a copy of the checklist and other compliance information in about 10 business days.

Determining Compliance
Batchelder lists several cautions if you want to determine whether your store is in compliance. "First, don't rely on local building code officials. It is their job to determine compliance with building codes and ordinances only, not ADA compliance," she says. The requirements of the two areas of law are often very different. Batchelder also advises that if you use the services of an architect or builder, be sure he or she is aware of the different requirements for facilities built before 1993 and those built after. Those built before 1993 must be brought into compliance with the law, but the requirements for compliance are different. They allow alternate methods (such as offering to show merchandise at a customer's home, sales by phone, etc.) that would not be considered sufficient in new construction or where you are doing major renovations. Be sure your architect has a copy of the ADA "checklist" discussed earlier.

Misconceptions
People have several important misconceptions about the public access provisions of the ADA. One is that a store doesn't have to comply unless it has 15 or more employees. Businesses with fewer than 15 employees are exempt from the provisions of the employment section of the law. But they must comply with the access provisions of the law even if they have no employees.

Another misconception about ADA is the owner has to make the business accessible to anyone regardless of cost. ADA was not intended to put businesses out of business. Physical alterations such as barrier removal are mandated only if they are achievable without undue hardship. Unfortunately, there is no exact definition of "undue hardship." However, the U.S. Department of Justice and the courts have recognized that cost and your company's resources are important factors in determining whether a specific alteration would create an undue hardship.

Enforcement
The access provisions of ADA are enforced primarily by the Department of Justice, which has the power to file a federal lawsuit against the business and to ask the court to order compliance, impose a fine or both. However, filing a lawsuit is not likely to be the first step. When the Justice Department receives a complaint, it calls or writes to the business involved to advise of the complaint and then tries to work out a solution.

There also are tax incentives to comply with ADA. If you have made or plan to make physical alterations to your store, speak with your accountant or tax preparer about this.

Another important advantage to complying with the law, says Batchelder, is that it's good business. More than 50 million Americans have a handicap of some kind. If you consider that excluding them from your establishment probably will also exclude their family members and friends, shutting your business to people with disabilities could easily exclude 30% of your potential customer base.

William H. Donahue Jr. is an attorney practicing in New Jersey.

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