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By Mark Douglass
Founder, RVing Accessibility Group
Thousands of businesses across the United States continue to get hit with Americans with Disabilities Act (ADA) discrimination lawsuits. The underlying motive is to get business owners to simply settle for $5,000 to $20,000 just to make the lawsuit go away.
Most of these “predators” know that mom-and-pop businesses are the easiest targets because they will typically settle a suit rather than fight it. And you can’t use the “grandfathered” excuse any more.
What would you do if your campground, RV dealership, manufacturing plant or business was served with an ADA disability lawsuit? Would you just write the check to make it go away, leaving you vulnerable for the next “predator,” or would you be prepared to fight, showing that the plaintiff has “no standing?”
It is very important to note that settling a lawsuit for $5,000 when the plaintiff attorney promises to make it go away, does nothing to protect businesses against the next plaintiff who files suit. In fact, settling with one plaintiff’s attorney can make companies an even bigger target with various disability coalitions once they know of the firm’s willingness to settle.
RVing Accessibility Group has spent time speaking to numerous state and national campground associations as well as at the RV Dealers Association convention to help raise awareness of the opportunities facing the campground and RV industry.
Our group also outlines the legal obligations with which business owners must progressively meet to comply with the Americans with Disabilities Act, which will be 29 years old this July.
The most frustrating part of raising awareness is the lack of education that campground owners, RV dealers and factories have regarding ADA standards for accessible design.
It’s not their fault. They have a hard enough time just keeping their campground full and maintained, while RV dealers have to get units out the door ,and manufacturers have to deliver units to keep up with demand.
While the majority of campground owners have stated their bathrooms are ADA “compliant,” our group has discovered in every instance that bathrooms are out of compliance and vulnerable to litigation. This is true for the RV industry as well.
To get a sense of access problems at their facilities, we encourage owners to get a manual wheelchair, tape their feet to the foot rests and move around their business to experience just how difficult it truly can be to enjoy the camping and RV shopping experience.
If you think people with disabilities do not travel alone, think again.
According to several state campground organizations as well as national organizations such as Kampgrounds of America (KOA), Leisure Systems (Jellystone), and the National Association of RV Parks and Campgrounds, RVing Accessibility Group is the only ADA consulting firm strictly dedicated to advocating for the outdoor hospitality industry.
It is doubtful that RV dealers and manufacturers are working with any ADA specialist to help make their businesses more accessible, if not ADA compliant.
In a recent ADA disability lawsuit against a campground owner, the following are a few of the alleged violations stated in the lawsuit:
- Failing to provide parking for individuals with disabilities.
- Failing to provide sign(s) for disabled parking or van disabled parking.
- Failing to provide a continuous firm and stable path of travel connecting all elements of the facility.
- Regarding the pathway to the office and the office entrance:
- Pathways and surfaces that are uneven.
- Pathways and surfaces that are too steep and including levels greater than 0.5 inches.
- For the pool area
- Failing to provide a means of entry at the pool as required for people with a disability such as a pool lift chair, sloped entry, transfer wall or transfer platform.
- For bathrooms and showers:
- Failing to provide an accessible urinal with proper clear floor space.
- Failing to provide adequate turning radius.
- Failing to provide an accessible toilet stall with proper width and depth.
- Failing to provide grab bars at proper locations and heights.
- Failure to provide proper knee clearance at lavatories.
- Failure to provide proper operative parts for lavatory and showers.
These are only some of the allegations mentioned in the ADA disability lawsuit against the campground owner. The average number of potential violations we have discovered per park is 70 while the most discovered has been more than 250. These are all opportunities for improvements or disability lawsuits.
According to defense attorney Matt Anderson, with Jaburg Wilk law firm, as well as others I have spoken with, it is recommended that all business owners, including the RV dealerships and campgrounds, ensure that the plaintiff’s allegations of ADA deficiencies are legitimate.
It is also recommended that business owners be proactive prior to being sued. To do this, Anderson recommends having trained accessibility specialists survey the premises. RVing Accessibility Group recommends identifying barriers and developing an implementation plan.
“A business’s voluntary correction of an alleged barrier renders a prospective plaintiff’s ADA claim moot is a way to prevent future suits,” said Anderson.
Here are some photos that resemble something people might consider to be ADA compliant, but there are “holes” in the compliance because some standards were missed. Spotting the problems may not be easy.
This stall certainly might appear to be ADA compliant, or even at a minimum, “accessible,” but it fails to meet the standards. The sanitary napkin dispenser impedes clear floor space and must be moved. Seat covers should be moved to the back wall and the flush control is on the wrong side. Sidewall grab bar does not extent minimum 54 inches from the back wall.
This stall has signage designating it as a handicapped accessible parking space, but it does not comply with the ADA. The sign is not at least 60 inches above ground, the paint lines are dilapidated, and there is no access aisle with cross hatch lines to indicate no parking.
In this case someone with a wheelchair can park in the designated accessible parking space, but if a car parks next to that space, the person won’t be able to get back in the car until the other driver shows up. Thus the requirement for an 8-foot-wide access aisle. And the sign does not state that the stall is van accessible. When there is only one accessible parking space, it must meet the van accessibility requirements.
Why is this grate out of compliance? Because it was installed parallel with the route of travel, not perpendicular to it. It is easy for a walker wheel to get caught in the grate.
This picture is a view of a bathhouse from the road. What else is wrong with this picture that makes it inaccessible for people using wheelchairs? There is no access route from the road to the paved concrete landing. One route is added in the photo as example. It would be good if the route to the bathhouse extended from the handicapped parking space to the concrete landing.
Develop a plan of action
All business owners should have a plan of action, or a “transition” plan. Doing so provides at least two major benefits:
- A “roadmap” with guidance from an accessibility specialist to progressively work toward ensuring accessibility by performing small projects annually.
- A defensible position in case someone with a disability decides to file a disability discrimination complaint with the local authorities or the U.S. Department of Justice which leads to an investigation. The business owner will be seen as trying to comply with the law and may be able to avoid a costly settlement or fines.
In summary, if you want to look at new ways to expand your market, while protecting your business, look at what others are doing to make their facilities more accessible to customers with handicaps.
The upside of knowing what you already have in place and developing a plan to fix the other problems, is that you now know where improvements can be made and whether you qualify for tax credits and additional tax deductions to help cover costs of the improvements.
The downside of not having a plan in place is a judge asking, “What have you been doing for the last 29 years to ensure your company complies with this law?”
Consider that 2019 is the 29th anniversary of the Americans with Disabilities Act and the 46th anniversary of the Rehabilitation Act of 1973, not to mention the 55th anniversary of the Civil Rights Act. The Americans with Disabilities Act is a civil rights law. Courts are no longer accepting “we didn’t know” as an excuse.
The approach RVing Accessibility Group takes is to be proactive with education and technical assistance in an effort to get more RVers with disabilities on the road. We also want to help campground owners and dealerships learn how to tap into a mostly untapped market to grow their businesses by providing greater accessibility while protecting it from frivolous disability discrimination lawsuits.
For more information about settlements made by the Department of Justice Civil Rights Division, visit www.ada.gov/enforce_current.htm.
Business owners who want to take advantage of significant group savings by combining inspections of five or more campgrounds, dealerships or other companies within a logistically reasonable area, email email@example.com or call 970.903.7442.
Mark Douglass is the founder of RVing Accessibility Group, an IRS approved 501(c)(3) tax-exempt charitable nonprofit providing education and technical assistance relative to ADA compliance for the outdoor hospitality industry. The team consists of adaptive RVers who have experience and professional training to teach business owners how to work toward ADA compliance and use tax incentives to help with the process. Tax deductible donations may be made online at www.rvingaccessibility.org under the Donate tab.