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Why You Should Care About Making Your Facility Accessible and Free of Architectural Barriers
 By Janelle R. Frederick
If you operate a business in Minnesota, there is a strong likelihood that your business is subject to the accessibility and architectural requirements under federal and state law. Over the past 25 years, the various laws and regulations governing accessibility have changed. In recent years, hundreds of Minnesota businesses have been sued by plaintiffs alleging architectural barrier violations under federal and state law. The allegations frequently involve minor infractions that can be resolved without much expense or the business owner is unaware that it has valid defenses. As a business owner, it is important to know your rights and responsibilities so that persons with disabilities can have full and equal access to your business and so that you can protect against needless litigation.
THE AMERICANS WITH DISABILITIES ACT OF 1990
President George H.W. Bush signed the Americans with Disabilities Act of 1990 (the “ADA”) into law on July 26, 1990. The ADA covers a broad range of issues, including discrimination in employment as well as construction and accessibility. Accessibility in the construction of facilities, which is the focus of this article, is covered in Article III of the ADA.
Businesses Covered under Title III of the ADA
A large majority of businesses are subject to Title III of the ADA. Businesses that are subject to the requirements of Title III of the ADA include those businesses that are “public accommodations” or “commercial facilities". A business is considered to be a “public accommodation” under the ADA if it is a private entity that affects commerce and it operates in at least one of the 12 specified industries, which include places of lodging, establishments serving food or drink, places of public gathering, bakeries, grocery stores, places of education, and places of exercise or recreation. 42 U.S.C. § 12181(7). A business is a “commercial facility” if it is non-residential and its operations will affect commerce. 42 U.S.C. § 12181(2). Therefore, most businesses are covered under Title III of the ADA.
2010 Standards for Accessible Design and Related Guidance
The initial regulations relating to the construction and accessibility requirements under the ADA were set forth in the 1991 Standards for Accessible Design (the “1991 Standards”). After the ADA was amended in 2010, the 1991 Standards were replaced with the 2010 Standards for Accessible Design (the “2010 Standards”). The Department of Justice compiled guidance on the 2010 Standards that provide additional instruction on the various regulations imposed by the 2010 Standards. The 2010 Standards and related guidance can be found here.
Generally, all businesses that are subject to Title III of the ADA and have facilities that were constructed or altered after March 15, 2012, must comply with the 2010 Standards. When making changes to an existing facility, an alteration must satisfy the 2010 Standards if it is “readily achievable,” that is, if it is “easily accomplishable and able to be carried out without much difficulty or expense.” Building inspectors, architects, and (when litigation occurs) attorneys and courts rely on the following factors when considering whether a change required by the 2010 Standards is readily achievable:
- Nature and cost of the proposed alteration;
- Overall financial resources of the business (including the parent company);
- Safety requirements;
- The number of employees at the facility; and
- The impact of the proposed alteration on the operation of the facility.
Prior to any redevelopment of a site, it is crucial to engage the services of an experienced architect, contractor, and attorney to assist in determining whether a proposed alteration satisfies the readily achievable requirement.
Businesses that constructed or altered facilities in accordance with the 1991 Standards prior to March 15, 2012 (when the 2010 Standards were enacted) enjoy a safe harbor provision that protects them from the 2010 Standards. However, once a covered business makes a change to a particular element of the facility that is regulated by the ADA, that element is subject to the 2010 Standards. Importantly, even relatively simple changes to a facility (e.g. re-striping a parking lot, renovating a bathroom, or adding carpet) are considered “alterations” to elements under the ADA and must comply with the 2010 Standards. Therefore, it is critical to consult the 2010 Standards when considering even relatively minor changes to a facility.
Remedies under the ADA
Generally, the ADA only provides for injunctive relief. It is within the discretion of the courts or administrative agencies to permit the recovery of attorneys’ fees. Therefore, claimants who bring an action against a business for a violation of the ADA cannot seek money damages under the ADA.
THE MINNESOTA HUMAN RIGHTS ACT
The Minnesota Human Rights Act (the “MHRA”) is a Minnesota law that also addresses construction and accessibility matters for those with disabilities. The MHRA is consistent with many requirements of the ADA, but it can also be more restrictive. It is important to consider the requirements of both the ADA and the MHRA when determining compliance with accessibility requirements.
Businesses Covered Under the MHRA
Businesses that fall within the MHRA’s definition of a “place of public accommodation” and, therefore, are subject to its requirements, include “a business, accommodation, refreshment, entertainment, recreation, or transportation facility of any kind, whether licensed or not, whose goods, services, facilities, privileges, advantages or accommodations are extended, offered, sold, or otherwise made available to the public.” Minn. Stat. § 363A.03, subd. 34. Unlike Title III of the ADA, a business is covered under the MHRA even if it does not affect commerce. Therefore, a Minnesota business could be subject to the MHRA without being subject to Title III of the ADA.
Architectural Barriers – Readily Achievable or Alternative Means Requirement
The MHRA requires that places of public accommodation allow persons with disabilities full and equal access to their facilities. The MHRA prohibits (1) denying any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation because of a disability; or (2) for a place of public accommodation not to make reasonable accommodation to the known physical, sensory, or mental disability of a disabled person. Minn. Stat. § 363A.11, subd. 1.
A business that is subject to the MHRA must ensure that its facilities are in compliance with the applicable standards. The burden is placed on the business to establish why it does not have to comply. Under the MHRA, architectural barriers must be removed if (1) the removal is readily achievable or (2) compliance with accessibility requirements under law cannot be accomplished by alternative means. The law favors the removal of architectural barriers that limit accessibility, so businesses should consult with experienced contractors, architects, and attorneys when determining whether compliance with a proposed alteration is not required.
Remedies Under MHRA
The MHRA imposes financial consequences against business that are greater than those imposed by the ADA. The MHRA provides for injunctive relief, which requires the business to comply with the accessibility standards. Additionally, under the MHRA, it is within the court’s discretion to also impose money damages, punitive damages, a civil penalty to be paid to the state, and attorneys’ fees.
Prior to facing a lawsuit, it is advisable to consult an experienced architect, contractor, and/or attorney to confirm that your facility is in compliance with the applicable requirements. If you are served with a complaint alleging a violation of the MHRA, it is best to consult an attorney to help you determine whether the proposed change is readily achievable or can be accomplished through alternative means. Siegel Brill has attorneys experienced in these matters who are able to assist you with both compliance and defense litigation.
Recent Changes to MHRA
In recent years, numerous businesses have been sued by plaintiffs alleging architectural barrier violations under the ADA and the MHRA. Frequently, the allegations involve parking lot slopes and access aisles that fail to satisfy the 2010 Standards. The same plaintiffs are bringing a large number of these lawsuits, and they seek quick monetary settlements, rather than actually resolving the alleged architectural barrier. Unfortunately, a large number of these lawsuits have been brought against small business owners who lack information about their rights under the ADA and MHRA, and the businesses pay thousands of dollars to settle a suit when they may have valid affirmative defenses that would allow them to prevail in court.
In direct response to the spike in architectural barrier lawsuits targeted at small business owners, the Minnesota legislature passed a new law that is intended to provide some protections for Minnesota businesses. The new statute, codified in Minn. Stat. § 363A.331, requires a claimant to provide a “pre-suit notice” to the business owner prior to bringing a lawsuit. There are statutorily-imposed time periods during which a lawsuit is prohibited in order to give the business owner the opportunity to investigate the alleged violation and, if it exists, bring the facility into compliance. Additionally, the new law will allow a violation to persist if it is determined not to be readily achievable or cannot be accomplished by alternative means.
If you receive a lawsuit alleging a violation of the ADA and/or MHRA, it is recommended to contact an attorney immediately in order to assess your rights and responsibilities under law and to review your potential defenses. Many insurance policies cover ADA/MHRA claims, so many businesses also contact their insurance agents to determine whether such a claim is covered under their policy. Complying with the ADA and the MHRA is important, and legal counsel can help your business navigate the complexities of the various requirements.
CONCLUSION
A large number of Minnesota businesses are subject to the ADA and the MHRA. Prior to the redevelopment or renovation of a facility, even if only for minor changes, it is crucial to seek the expertise of an architect, contractor, and attorney who can assist with determining whether the proposed alteration is in compliance with applicable law.
If you are sued by someone claiming that your facility is in violation of the ADA and the MHRA, contact an attorney at Siegel Brill in order to preserve your rights and to assist you with possible defenses. Frequently, accessibility lawsuits are covered under your insurance, so it is advisable to reach out to your insurance agent to determine if the claims are covered under your policy.
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