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socrateaser
socrateaser, Lawyer
Category: Legal
Satisfied Customers: 38244
Experience:  Retired (mostly)
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Need an ADA expert advice. I have a 10 room property w 10

Customer Question

Need an ADA expert advice. I have a 10 room property w 10 parking spaces. Each room has an assigned parking space.
The building is an old non compliant property. The entrance doors are only 30" wile the bathroom doors are 24". ow can I or somebody explain demonstrate that unless I demolish some rooms there is no possibility of accommodating a wheelchair respectively there is NO need for a Handicap parking space. Is there any precedent (i am sure there is) ? I am located in Lauderdale by the Sea. Is it worth spending money trying to fight this?ONLY QUALIFIED EXPERTS ANSWER NEEDED.
Submitted: 5 months ago.
Category: Legal
Expert:  socrateaser replied 5 months ago.

Hello,

I have handled multiple cases of disability discrimination by persons who claim that they were denied reasonable access to a place of public accommodation.

The issue is always the same: is the cost of rehabbing the property to provide access more than the cost of settling the (prospective or pending) lawsuit. Most of the time, the answer is "no," it's cheaper to settle. However, much depends on just how likely another person will come along and threaten or sue for disability discrimination. If it's not very likely, then settle. Otherwise, you should either rehab the facility or defend against the lawsuit. The most typical defense is that the plaintiff never actually attempted to enter the facility, and had no interest in doing so. This is pretty typical, because there are disabled persons who make $100,000 per year or more, filing these types of lawsuits. And, unless the defendant discovers that the plaintiff is playing the system and uses that to try to show that the plaintiff never actually attempted to visit the property -- other than a quick drive by -- then the plaintiff is likely to win. At which point, the defendant has spend a load of dough on lawyers and must still rehab the property.

The other typical defense is that the property would be unreasonably difficult to rehab. This is a legitimate defense, buy you will need to hire an expert in disability access who can write a report and testify to the cost of rehabbing your property. The court will require a very high cost and/or difficulty, before it will rule that the difficulty is unreasonable. So, there's still some risk. But, a lawyer with experience in these types of cases can review the issue with the expert, and determine if it's worth the courtroom battle.

I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer (click 3, 4 or 5 stars) -- otherwise, I receive nothing for my efforts in your behalf.

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Customer: replied 5 months ago.
Unfortunately you did NOT. I am not being sued . The city asked me to provide a HPS. My question was if a precedent exists when the locale can not made be compliant, then the owner does not need to provide HPS
Expert:  socrateaser replied 5 months ago.

I apologize for any miscommunication. Your original comments didn't mention that this is a dispute between you and the city. Regardless, if the city is requesting that you install handicapped parking, then upon your refusal, unless you can show a compelling legal rationale for your position, the city will file a lawsuit to force your compliance -- which is essentially the same as what I described with a private plaintiff.

Anyway, you ask for a precedent in Florida case law for this issue, which I will be happy to provide. The analytical framework set forth in Johnson v. Gambrinus Co./Spoetzl Brewery, 116 F.3d 1052 (5th Cir.1997), has been adopted by the U.S. District Court for the Southern District of Florida (which encompasses Broward County) provides as follows:

  • "[1] The plaintiff has the burden of proving that a modification was requested and that the requested modification is reasonable. [2] The plaintiff meets this burden by introducing evidence that the requested modification is reasonable in the general sense, that is, reasonable in the run of cases. [3] While the defendant may introduce evidence indicating that the plaintiffs requested modification is not reasonable in the run of cases, the plaintiff bears the ultimate burden of proof on the issue. [4] If plaintiff meets this burden, the defendant must make the requested modification unless the defendant pleads and meets its burden of proving that the requested modification would fundamentally alter the nature of the public accommodation." [numbering added] Id. at 1059.

No. 4, above is the exception that you must prove to the city, because this exception is what the city would need to defend itself, if a future private person were to sue both the city and you for allegedly maintaining a public accommodation in violation of the ADA: that the accommodation required would fundamentally alter the nature of the public accommodation.

This seems to me to be a relatively easy proof for you, given your comment that you would have to demolish a portion of the existing structure. However, you will almost certainly have to hire an expert in disability access to provide a report of the modifications required, and the cost, so that the city will have something that it can rely on to grant you a waiver of the requirements local ordinance, state and federal law.

I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer (click 3, 4 or 5 stars) -- otherwise, I receive nothing for my efforts in your behalf.

Thanks again for using Justanswer!