The ADA A Legal Obligation You Can’t Afford to Avoid

The Americans with Disabilities Act (ADA) is a legal time bomb, ready to affect any U.S. business that doesn’t adhere to it. Yet many independent jewelers don’t know how to comply with—or mistakenly think they’re exempt from—the law’s requirements.

“Most jewelers have a vague knowledge that they must do something, but they’re not sure what,” says 30-year veteran jewelry store designer Herb Schottland of Store Design and Fixturing, Reston, Va. “They don’t realize the extent of the law and its ramifications.”

Even those who do know “aren’t predisposed to spending the money” to comply, notes Michael Crosson, chief executive officer of JGA Inc., Southfield, Mich., a design and architectural firm for jewelers and other retailers. He says some retailers want to stop remodeling a facility when it’s “close enough.” “We have to tell them that isn’t okay,” Crosson says. “The ADA isn’t about being ‘close.’ It wants exact compliance.”

Legal risks. Congress passed the ADA, a landmark civil rights bill for the disabled, in 1990. Its intent is to help the disabled gain greater access to employment and to public and private facilities. Title III of the ADA (which has been revised and updated in the past decade) is, in effect, a national building code.

Yet, even after a decade, only a minority of small businesses, including independent jewelers, are ADA-compliant, according to design and legal experts interviewed by JCK. And that, they warn, is risky.

Violation of this federal law carries serious penalties (up to $50,000 for the first violation and $100,000 for any subsequent violation). The U.S. Department of Justice has sued hundreds of non-compliant businesses and state and local governments since 1990, “winning almost every case,” noted former Attorney General Janet Reno in 2000. Local building code officers can’t enforce the ADA, but they can refer any questionable cases or those needing interpretation of ADA rules to state and federal authorities.

But the biggest threat to non-compliant retailers is the growing use of the ADA’s primary means of enforcement—lawsuits by private citizens or groups. “Anyone can go into a jewelry store, or any business, and file a lawsuit if they find it isn’t complying with the ADA—and non-compliance can be something as simple as the height of the toilet paper dispenser in the restroom,” says Elizabeth Nicolson, legislative director for Congressman Mark Foley (R-Fla.). In Florida, for example, there has been what Foley calls a “rash of lawsuits” against businesses that allegedly didn’t adhere to ADA requirements.

Some were filed by individuals or groups concerned with access for the disabled in public facilities; others were filed in areas of the country with a growing number of elderly residents. But many more are coming from “plaintiffs and lawyers [who] find they can make a lot of money from ADA violations,” says Scott Vinson, labor policy specialist for the U.S. Chamber of Commerce. “They drive by areas like strip malls looking for technical violations. Then, the business owner gets a notice he is being sued. He has to hire a lawyer and, to avoid going to trial, will agree to settle and fix the problem. But he still has to pay the fees of the plaintiffs’ attorneys—running from $500 to $2000.

“Any business should be concerned about this trend,” says Vinson. “It began in Florida, California, and Hawaii, but we expect it to spread rather quickly to other states.”

Requirements. Here is an overview of what the ADA requires businesses to do to provide accessibility for the disabled.

Parking. If you provide customer parking, you must have designated handicapped parking (5 ft. wide for cars, 8 ft. for vans). These spots must be located near an entrance and include space on either side for a person in a wheelchair, electric scooter, or other motorized device to get into or out of the vehicle.

Entry. If the level of your store is higher than the sidewalk or if there are one or more steps at your entrance, you must provide an alternate accessible entry (if your store has more than one), a lift, or a short ramp. Inside, for stairs leading to a mezzanine or second floor, a lift or elevator may be needed.

Doorways must be at least 36 in. wide (for wheelchair entry). Hard-to-use door hardware such as doorknobs, panel-type handles, or handles with thumb latches should be changed to lever handles or loop handles, which can be operated without tight grasping, pinching, or twisting.

If security is a concern, a buzzer or bell can be used to notify the staff to open the door. However, it must be placed at an accessible height, no more than 48 in. from the ground.

In-store. Wherever merchandise is stored on shelves or in displays, access routes or aisles must be at least 36 in. wide. Access gates to the clerks’ area and the clerk aisles (behind the sales counters) also must be 36 in. wide to accommodate employees in wheelchairs, and both employee and customer sections must include turnaround areas. If a wheelchair user must make a 180-degree turn to exit, then a 60-in.-wide turning space or a 36-in. wide “T” is required.

At least one showcase in any given area must be lower than normal showcases—36 in. as opposed to 42 in. For example, a store with showcases on the back and side walls must have at least one line of cases at a 36 in. height. If there is an “island” of showcases in the middle of the store, one of them must be 36 in. high. Usually, the counters for “cash and wrap” should be lower, too, notes store designer Wayne Visbeen, of Grand Rapids, Mich.—at least 36 in. long and not more than 36 in. above floor level. Some stores handle this by providing pull-out trays or lift-down tops, notes Crosson: “The ADA code has specific requirements, but it doesn’t always say how to accomplish them.”

In addition, the areas in front of a counter must have a “clear space” of 30 to 48 in. to let customers with wheelchairs pull up alongside.

Restrooms. A store’s restrooms (for both the public and staff) must meet ADA requirements for room and stall sizes, location of towel and toilet paper dispensers, and height of sinks.

Miscellaneous. Water fountains must meet ADA height requirements. Signage for the blind or visually impaired may also be necessary.

The average independent jewelry store has about 1,000 to 1,500 square feet of sales space, notes Schottland. The ADA requirements affect about 5% to 10% of that in terms of remodeling. The additional cost to incorporate changes is minimal if they’re made in the early stages of remodeling, design, or construction, as compared with correcting problems after construction is completed (or being taken to court for violations). “In fact, I don’t think there is really any additional cost if they design properly and the proper allowances are made,” says Schottland. “It really is more a matter of skill and knowledge [on the part of] the store designer and makes the use of a store designer more necessary.”

Fallacies. Some retailers have mistaken ideas about ADA compliance. Some assume that because they have only a few employees, they’re too small to be subject to the regulations. But while ADA’s employment rules apply to businesses with 15 or more workers, its access requirements affect all five million private establishments in the United States, regardless of size or number of employees.

Others think they’re exempt because they’re in designated “historic” areas or because their building pre-dates ADA’s passage in 1990 or implementation in 1992. But, says Crosson, “I don’t think any building is 100% exempt. There may be situations where [compliance] is difficult, but none that can’t be done given space, time, and money—especially when a store remodels or expands.” And, say the experts, even older facilities are responsible for “readily achievable” improvements that remove barriers to accessibility. However, a specific business’s obligation to make such improvements depends on various factors, including financial pressures.

Some jewelers, Schottland says, assume that “once they get past the building inspection and can open, they’re home free.” A few even try to put their showcases on casters to reposition them where they want after the inspection. But a local building inspector “can’t waive ADA requirements,” says Crosson, and while they can’t enforce ADA requirements, “they have a responsibility to review for compliance during the building process.” In addition, he reiterates, “any citizen can come in and sue for non-compliance, so it’s foolish for a jeweler or any retailer to try to circumvent ADA requirements. If they do, they face high legal and cost issues down the road.

“Readily achievable.” The ADA calls for “easily accomplishable” and “readily achievable” compliance. It recognizes that many small businesses can’t make, or can’t afford to make, significant changes to their location in order to comply. Therefore, the law includes several provisions—such as tax credits—to help resolve such problems. For instance:

  • The requirements for facilities built before 1993 (or modified after early 1992) are less strict than for those built after early 1993.

  • The “readily achievable” requirement is based on a business’s size and resources. What may be easy for large businesses may be difficult for smaller ones. If a private business can’t remove access barriers because of financial hardship, ADA’s Title III lets it reduce or delay those changes until a later date when it becomes financially able to do so. “Barrier removal is an ongoing obligation,” says the ADA Guide for Small Businesses. “You are expected to remove barriers in the future as resources become available.”

  • According to ADA guidelines, a significant reduction in selling space and its “substantial” effect on business profitability can be considered a deterrent to providing maneuvering space for wheelchairs between displays and shelving. When access can’t be provided, or when merchandise is located in areas reachable only by stairs, alternative services—such as staff retrieving merchandise for disabled customers—must be provided. “It isn’t necessary to put all merchandise within the reach of people in wheelchairs,” say ADA documents, “but staff should be available to assist customers who have difficulty in reaching or viewing items.”

  • To encourage ADA compliance by businesses, the Internal Revenue Service (IRS) offers these tax benefits:

Section 44 of the IRS Code allows a tax credit to small businesses with $1 million or less in revenues and 30 or fewer full-time employees in the previous tax year. A business can claim a 50% credit on expenses over $250 but not more than $10,250 for any tax year. Expenses topping $10,250 can be handled under normal depreciation rules. This tax credit can offset the cost of removing barriers to make the store accessible; alterations to improve accessibility; providing accessible formats for signage, such as Braille or large-print signs and audio tapes; making a sign-language interpreter or a reader available for hearing-impaired customers or employees; and/or purchasing certain equipment to assist people with disabilities.

Under Section 190 of the IRS Code, an eligible business can claim a tax deduction for making their facilities more accessible to and usable by disabled or elderly persons. The deduction is available to all businesses, up to a maximum of $15,000 per year. This provision covers expenses incurred during barrier removal or alterations such as grading walkways, providing designated parking areas, and installing accessibility ramps, fountains, phones, and/or elevators. The $15,000 limit can also be applied to each partner in a partnership.

The ADA rules also set priorities for barrier removal. Top priority is given to access to a business from sidewalks, parking, and/or public transportation, followed by access to areas where goods and services are offered to the public. Next in importance is access to public restrooms, and finally removal of any remaining barriers, such as limited access to phones or drinking fountains.

“When all is said and done,” says Crosson, “anyone with a business has to be aware of the ADA and its impact on them and be able to discuss that intelligently with the architect.” Jewelers in existing locations should “begin a process of compliance to defuse any actions by building officials or courts.” Those looking at a new location “should understand the environment they’re working with before they go in, to know what they have to do to comply.”