Is Your Firm In Compliance With The American With Disabilities Act?
The purpose of this report is to provide specific information to commercial, industrial and public facilities (all of which is covered under this act) on compliance requirements and the penalties for non-compliance relative to ground and floor surfaces covered under the AMERICAN WITH DISABILITIES ACT (ADA). This Act is now in full force and effect and you are more than likely subject to all of the ADA rules, regulations and penalties for non- compliance.
The slightest infraction of the regulations, whether intentional or not, if brought to the attention of the Justice Department, will put you and your company against the United States Government. The massive financial, legal, and manpower resources available to the Department of Justice effectively removes any glimmer of hope for a fast and reasonable settlement. Since it is clear that the Department of Justice will, in almost every case, win, it is important to take all available compliance actions to avoid the abusive and unfair litigation described herein.
Regulation 36.503 (3)(i) provides for a penalty of up to $50,000 for a first violation. Regulation 36.503(3)(i) provides a penalty of up to $100,000 for the second and subsequent violations. In addition to theses harsh penalties, the regulations also make provisions to require your firm to pay all legal expenses of the one who brings the action against you.
The one window of opportunity to be found is in Regulation 36.503 (3)(d) wherein it states,".... the court shall give consideration to any good faith effort or attempt to comply with this part."
However, the ADA Handbook goes on to state in its analysis of this regulation that " The "good faith" standard referred to in this section is not intended to imply a willful or international standard.. that is, an entity cannot demonstrate good faith simply by showing that it did not willfully, intentionally or recklessly disregard the law." In other words, "I didn't intend to violate the regulations." Is not a defense. The only defense that you can hope to use to reduce the amount of penalty to be levied against you is to take action now to bring all floors surfaces covered under the ADA in compliance with the ADA regulations.
The ADA Handbook specifically lists and includes as public accommodations restaurants, hotels, theaters, shopping centers, retail stores, dry cleaners, laundromats, doctor's offices, pharmacies, libraries, parks, private schools, day care centers, convention centers, hospitals, amusement parks, health spas, bowling alleys, and zoos.
Firmness, Stability, and Slip Resistance [§302.1]
Accessible floor and ground surfaces must be stable, firm, and slip resistant. Stable surfaces resist movement, while firm surfaces resist deformation by applied forces. Accessible surfaces remain unchanged by external forces, objects, or materials.
Hardened materials such as concrete, asphalt, tile, and wood are sufficiently firm and stable for accessibility.
Most loose materials, including gravel will not meet these requirements unless properly treated to provide sufficient surface integrity and resilience. Binders, consolidants, compaction, and grid forms may enable some of these materials to perform satisfactorily but require repeated maintenance.
Accessible surfaces must be slip resistant to minimize hazards to people with disabilities, especially those who are ambulatory or semi-ambulatory or who use canes, crutches, and other walking aids. However, the standards do not specify a minimum level of slip resistance (coefficient of friction) because a consensus method for rating slip resistance remains elusive. While different measurement devices and protocols have been developed over the years for use in the laboratory or the field, a widely accepted method has not emerged. Since rating systems are unique to the test method, specific levels of slip resistance can only be meaningfully specified according to a particular measurement protocol. Some flooring products are labeled with a slip resistance rating based on a laboratory test procedure.
Compliance with the standards requires specifying surface materials, textures, or finishes that prevent or minimize slipperiness under the conditions likely to be found on the surface. Standard practices for minimizing floor or ground slipperiness will likely satisfy compliance with the standards as slip resistance is important not just for accessibility but for general safety as well. Applications and finishes used to increase a surface material’s slip resistance may require continued maintenance or re-application.
The standards limit changes in level and openings in floor and ground surfaces, but they do not further address overall surface smoothness. Rough surfaces composed of cobblestones, Belgian blocks, and similar materials can be difficult and sometimes painful to negotiate with wheeled mobility aids due to the vibrations they cause.