Many Stores, One Set of Rules

ADA updates regulations for renovation and new construction.

As of March 15, 2012 retail and restaurant owners renovating their facilities are required to comply with a new set of regulations under the American with Disabilities Act, or potentially face hefty fines and/or lawsuits. Retail, banking and restaurant chains are particularly vulnerable, since liability rises with the number of locations found to be out of compliance. That said, the new regulations apply only to new projects and renovations, and litigation risk can be significantly reduced with a forward-looking compliance management program.

ADA compliance lawsuits have plagued retail, hotel and restaurant chains in the past, so it is important for owners of multi-site portfolios to be especially conscious of these changes. Litigation for numerous stores, bank branches or restaurants can become costly and can force owners into less gradual implementation of the new parameters. Because the new regulations are triggered by renovation or new construction, owners need to understand and account for the potential impact on their capital planning.

Plan Ahead to Reduce Risk

When a property or portfolio undergoes minor repairs or a major renovation, ADA compliance must be considered in each location where construction is taking place. For large-scale chains, it is best to audit the entire portfolio for ADA compliance at once, so that when construction becomes necessary, the impact of the new rules can be built into the program.

An organized multi-site ADA audit program can both ensure compliance and manage costs. For example, a client with 5,000 locations recently had to identify potential issues across its portfolio that needed to be addressed in renovations and repairs over the next few years. Through an electronic documents management program, sharing blueprints and implementing best practices, the audit team was able to reduce the client’s exposure to ADA-related litigation risk for years to come. The result was a portfolio plan that was consistent and compliant for all sites. Furthermore, the program ensured that the cost of compliance was managed and scheduled at a pace the organization could plan for and anticipate.

Developing and performing detailed surveys, designing and implementing effective solutions — sometimes across hundreds of properties — requires expertise in ADA-related architectural design and project management. For maximum cost efficiency and risk mitigation, organizations should consider engaging third-party experts with deep experience in managing the large amounts of data that complex portfolios require to achieve and maintain ADA compliance.

When it was enacted 20 years ago, ADA required building owners to examine, and often alter, many public aspects of their new developments and existing properties. Now owners must look at their plans for renovating or building new properties differently, as ADA undergoes its most significant update since 1991.

The new regulations were announced by the Obama administration in July 2010, so some building owners have already adapted to them over the last 2 years. The new requirements are more evolutionary than revolutionary. New development or remodeling completed using the old ADA standards before the new law became effective were subject to the “safe harbor” provision, which allows them to continue complying with the 1991 standard without penalty.

What’s Changed?

The ADA is generally considered successful at meeting the goals it set in 1991, so the update introduces minor, rather than sweeping, changes to current accessibility standards. The variations to existing ADA laws will touch a wide variety of properties. Changes that are applicable to commercial properties of all types include:

• The side reach range of equipment in accessible areas has been reduced to be no higher than 48 inches (instead of 54 inches) and no lower than 15 inches (instead of 9 inches).

• Construction tolerances for dimensions of equipment (such as grab bars) stated as a range will be eliminated.

• In single-user toilet rooms, the water closet now must provide clearance for both a forward and a parallel approach and, in most instances, the lavatory cannot overlap the required clear space around water closets.

• Increased requirements for accessible routes within buildings.

• More stringent slope requirements for clear floor space at accessible elements.

Additionally, there are a few places where the regulations have actually loosened. Under the new rules, where there is no pedestrian route from the street to a storefront, owners now are not required to create an accessible pedestrian route (under the 1991 rules, they did). And some regulations have stayed the same: Mall owners still have to provide an access to all stories of their buildings, but nothing further was added to that requirement.

Retailers & Restaurants: Be Aware

As some of the most visible public commercial spaces, retail facilities often receive the most attention — both positive and negative — when it comes to complying with the ADA. On one hand, accessible retailers often receive good publicity from online reviews and word-of-mouth. Retailers that don’t comply, however, often find themselves subject to a lawsuit or complaint, sometimes magnified by the size of the chain.

Some of the specific changes to the regulations could affect retailers and restaurants more than other properties. For example, previous standards allowed for a lower shelf on the front half of a checkout counter while the rest of the counter remained at standing height. New regulations indicate that the entire depth of the accessible portion of the counter should be at the lowered height.

In addition, the operating controls for beverage stations will need to be no more than 48 inches tall. Restaurants and retailers that have children’s play areas should also ensure that those areas meet accessible requirements.

Cautionary Tales

It can’t be emphasized enough that ADA regulations have strong potential penalties for those judged to be out of compliance. Offenders can be fined up to $55,000 for the first violation and $110,000 for the second.

In some cases, organizations have paid much larger additional amounts to compensate individuals involved in lawsuits. And following litigation, courts often dictate remediation schedules, removing control from the organization and often resulting in greater overall expense. Several multi-site retailers have recently settled lawsuits after violating ADA regulations: QuikTrip was required to set up a $1.5 million compensatory damages fund to pay aggrieved individuals who couldn’t get around their convenience stores, while NPC International, the largest franchiser of Pizza Hut restaurants, is now undergoing renovations at 800 stores as the result of a settlement.

Good for Business, Good for Brands

Compliance is also good business. Many associations publish guides and rating systems that evaluate businesses such as hotels and retailers according to accessibility for disabled persons. Being perceived as proactive in enabling access for everyone builds a positive image.

While avoiding litigation and managing costs are both good for the bottom line, it’s also worth considering the value to a brand that full and proactive compliance can bring. By making locations accessible to all, retailers send a positive message to their customers and communities.