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Lawsuits a Strong Reminder of ADA Compliance

J Heck Aug. 18, 2008

A Wichita paraplegic has filed at least a dozen lawsuits in the past year against local businesses, claiming violations of the Americans with Disabilities Act.

The lawsuits, which could cost area businesses thousands of dollars, send a stern message: ADA compliance needs to be taken seriously.

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But compliance can also cost a business dearly, says Jo Zakas, owner of Clifton Square LLC. Making necessary changes to her College Hill shopping area could cost her as much as $275,000 -- making it impossible to make the changes and stay afloat financially.

"It's a no-win situation," she says.

Alan Rupe, who manages the Wichita office of Kutak Rock LLP, says the recent lawsuits are a reminder that businesses cannot overlook ADA issues.

He says it is a "pay now or pay later" mentality. Addressing ADA issues now might prevent a lawsuit later.

"If businesses are in compliance then they should have nothing to worry about," Rupe says.

Linda Hamilton's lawsuits claim businesses she visited were not ADA compliant, including inadequate parking, entrance accessibility challenges and restroom facilities that were too small for a person in a wheelchair.

Improving Civil Rights

Hamilton hired Schwartz Zweben & Slingbaum LLP, a national law firm that has filed thousands of similar ADA lawsuits across the country.

She says the lawsuits aren't about money, but improving civil rights.

"My mission is to remove barriers and improve accessibility for the disabled," she says.

Enacted in 1990, the ADA requires businesses to remove barriers that discriminate against patrons who have disabilities. Businesses created before the act must comply to the extent they can "reasonably" do so.

While the law does not authorize monetary damages for the plaintiffs, a lawsuit can cost a business hundreds of thousands of dollars in legal fees as well as any needed modifications to comply with ADA regulations.

In some instances, the costs associated with such a lawsuit could put someone out of business, Rupe says. So far that hasn't happened to any of his clients.

Because the act doesn't require that businesses be notified of alleged violations prior to a lawsuit, businesses are often caught off guard when a suit is filed.

"The lawsuit is not designed to cause anybody a hardship," says Edward Zwilling, an attorney with Schwartz Zweben, who represents Hamilton. "It is to draw light to the problem."

But local attorneys who have defended these cases question the motives of those involved, saying that resolving these issues doesn't have to start with a lawsuit.

"A lawsuit, in my opinion, should be a last resort," says David Calvert, a sole practitioner who is representing several businesses in the Hamilton suits.

Calvert, who also has been a plaintiff's attorney in ADA cases, says he tries to work with businesses to address any ADA issues they might have. He often sends letters to initiate the process.

Feeling the Pressure

Clifton Square is one of several businesses feeling the added pressure of meeting ADA standards.

A lawsuit filed in November against the shopping center in Wichita's historic College Hill area alleges several ADA violations.

Zakas says some of the issues would be fairly simple to correct, such as lowering the level of a doorway threshold.

But others, such as installing elevators in the buildings with multiple floors, would be more complex. Some of the buildings in Clifton Square were built in the 1880s, which Zakas says compounds the situation.

Clifton Square might be protected by a provision in the law that states existing businesses, especially those that predate the ADA, do what is "readily achievable" to comply.

Wichita's building code requires plans for new buildings to be inspected for ADA compliance before a building permit is issued.

Other Resources

Rupe says Kutak Rock, a law firm with 17 offices nationwide, including one in Wichita, works with businesses to provide resources for ADA compliance.

The company is defending several businesses that have ADA lawsuits filed against them.

Aside from working with consultants or architects to ensure compliance, businesses can call the Great Plains ADA Center, an agency that provides information and technical assistance to businesses throughout the Midwest.

The federal government also offers a disabled access credit that is available for small businesses and a tax deduction that is available for businesses of any size to help offset some of the costs of improving accessibility for customers or employees with disabilities. | 266-6172