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SMALL BUSINESS HEADACHE: COMPLYING WITH ADA

By Allen L Phillips

We have 2 owners plus 2 employees in our small automotive repair business. Most of our time is consumed with the day to day business of providing the best possible customer service to our customers. We have little time to worry about the many laws and regulations that could adversely affect our operations since it seems there is little we can do to change them.

But there is one pending law, Assembly Bill (AB) 1885, that has been sitting in the California Assembly Judiciary Committee that would ease one area of concern and we could use your help to shake it loose. Let me explain:

Up until recently we were hearing frequent news that some business nearby has been sued for non-compliance with the Americans with Disabilities Act which says that people with disabilities must have easy access to your business, your service counter, your waiting room and whatever other “public accommodations” you make available to them.

According to Wikipedia, the Americans with Disabilities Act of 1990 (ADA) was enacted by the U.S. Congress in 1990. It was signed into law on July 26, 1990, by President George H. W. Bush, and later amended with changes effective January 1, 2009.

The ADA prohibits discrimination based on disability. It affords similar protections against discrimination to Americans with disabilities as the Civil Rights Act of 1964, which made discrimination based on race, religion, sex, national origin, and other characteristics illegal.

Under Title III of the Act, no individual may be discriminated against on the basis of disability with regards to the full and equal enjoyment of the goods, services, facilities, or accommodations of any place of “public accommodation” by any person who owns, leases, or operates a place of “public accommodation”. “Public accommodations” include most places of lodging (such as inns and hotels), recreation, transportation, education, and dining, along with stores, care providers, and auto repair shops.

Under Title III, all “new construction” (construction, modification or alterations) after the effective date of the ADA (approximately July 1992) must be fully compliant with the Americans With Disabilities Act Accessibility Guidelines.

Title III also has application to existing facilities. One of the definitions of “discrimination” under Title III of the ADA is a “failure to remove” architectural barriers in existing facilities. This means that even facilities that have not been modified or altered in any way after the ADA was passed still have obligations. The standard is whether “removing barriers” is “readily achievable”, defined as “…easily accomplished without much difficulty or expense.”

California has passed similar legislation over the years and opportunistic attorneys then began randomly picking an area, say the historic town of Julian, and filing shakedown lawsuits against every business on a given block for non-compliance.

California Senate Bill 1186, signed by the Governor in September of 2012 went a long way toward stopping the frivolous lawsuits under the guise of ADA but stopped short of requiring notice prior to the filing of a complaint. That means that being slapped with a lawsuit may still be the first time a business owner becomes aware of a problem and starts the 30 day (in our case) clock to fix any violations which brings us back to AB 1885.

AB 1885 would add the requirement that notice be given to a business owner with a 30 day period allowed to either respond with a description of the planned changes or with a rebuttal to the allegations. Once there is agreement as to the changes the bill would provide 90 days to complete them.

Disability rights groups, such as Disability Rights California, www.disabilityrightsca.org, say that ADA and California’s companion laws have been around for decades and are well understood. They say that all businesses should have long ago complied with the law.

We say that we already have enough on our plate with meeting the ongoing requirements of the Bureau of Automotive Repair, California’s Occupational Safety and Health Administration, City, County and State environmental regulators, just to name a few. Our business is in a repurposed railroad maintenance building that is well over 50 years old and we have no idea how the ADA might be applied to our situation. We need a notice.

Please click on the following link, http://ajud.assembly.ca.gov/membersstaff, which will take you to a list of members of the Judiciary Committee. Call them and tell them you don’t think your favorite auto repair shop, or any other of your favorite businesses, should have to worry about not getting fair notice of an ADA non-compliance issue.

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