Monday, January 23, 2012

Complying with Standards for Accessibility by Persons With Disabilities

Texas’ statutory standards for accessibility by individuals with disabilities to privately owned buildings, including commercial establishments are contained in the Texas Accessibility Standards (TAS) of the Architectural Barriers Act. A copy of TAS is here. TAS substantially follows federal standards for accessibility established under the Americans With Disabilities Act (ADA). As one might expect, TAS is lengthy and complex, replete with exceptions, exemptions, minimum requirements and alternative guidelines.

Compliance is generally monitored and enforced by the Texas Department of Licensing and Regulation, which has established its own regulations and guidelines related to accessibility. However, persons with disabilities may also bring a private lawsuit to seek enforcement of TAS and/or damages for being denied access to a business establishment. Various civil rights organizations also pursue claims on behalf of individuals with disabilities to ensure that all public establishments remain open and accessible.

Many business owners are surprised to find themselves served with demands or even litigation seeking enforcement of TAS for access in buildings which they do not own. Merely leasing the premises does not excuse a business owner from compliance with TAS.

When a business owner receives a demand or is served with a lawsuit concerning accessibility, it should conduct an immediate investigation and formulate a plan of action. Early identification of the issues and evaluation of possible alternative methods to ensure accessibility (such as signage identifying assistance available to persons with disabilities) often leads to significantly reduced costs for compliance, as well as decreasing the potential for an award of damages and attorneys’ fees.

A business owner should also seek assistance from outside sources. For example, your lease agreement may contain terms related to remodeling and renovation, or allocate responsibility for ensuring compliance with building codes such as TAS. If it does not, you may wish to negotiate such terms in future leases. Additionally, certain types of commercial insurance policies may provide the policy-holder with coverage related to accessibility claims.

Article by Cynthia W. Veidt, Attorney