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
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.
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.
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
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.
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
William H. Donahue Jr. is an attorney practicing in New Jersey.
Copyright © 1999 by Bond Communications.