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Shopping Centers Today -> October 2003
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ADA REFORM STALLED BY ELECTION, ADVOCATES SAY
BY IAN RITTER
Shopping center landlords continue to pay hundreds of thousands of dollars to settle minor violations of the Americans with Disabilities Act (ADA). But, with an effort to reform the act stalled in Congress, there is still no relief on the horizon.
An ICSC-backed bill that would revisit the 1990 law has been stuck in a House committee since March, and that, proponents say, is where it’s likely to stay — at least until after next year’s election. Politicians don’t want to be seen tampering with such a sensitive issue as the rights of the handicapped this close to an election, says Elizabeth Holland, chairwoman of ICSC’s Economic Subcommittee, who is helping to promote the legislation.
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The bill, submitted by Rep. Mark Foley, R-Fla., would give landlords a 90-day grace period to fix violations before being penalized.
The bill’s proponents complain that lawyers search out minor technical violations at shopping centers and other public venues, such as handicapped parking signs that hang a half-inch too low, then find plaintiffs and profit from large cash settlements.
Holland, asset manager and general counsel of Chicago-based Abbell Credit Corp., says that she has personal experience with the issue. A few years ago, an attorney contacted Abbell about a strip center it owns in Toledo, Ohio, asserting that the company was in violation of the act because the painted stripes in the parking lot were not bright enough. The attorney’s client, with whom Abbell had to settle for thousands of dollars, lived in Twentynine Palms, Calif.
“It was obvious to us that the man had never been to my shopping center, ever,” Holland told SCT.
Jo Anne M. Bernhard, a Sacramento, Calif., lawyer who is a member of ICSC’s ADA Task Force and represents landlords in ADA cases, offers similar stories. Once, she recalls, she represented a client for a signage violation. The sign in question turned out to be 59-and-a-half inches tall, rather than the required 60 inches.
One of the main problems landlords face, says Bernhard, is that government building inspectors often certify properties as being in compliance with the law without catching ADA violations. Owners wrongfully assume the properties, once certified, are immune from legal challenge. This is not so, and when they are sued, they themselves, and not the building inspectors, are liable for any missed violations, legal experts point out.
To correct these problems, the industry needs to get the attention of U.S. lawmakers, Bernhard says.
“It’s been difficult to get Congress to focus on it,” she told SCT. “We’re not getting through as quickly as we think we should.”
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