The purpose of this report is to provide specific information to commercial, industrial and public accommodation facility managers (all of which are covered under this Act) on compliance requirements and the penalties for non-compliance relative to ground and floor surfaces covered under the AMERICANS WITH DISABILITIES ACT (ADA). This Act is now in full force and effect and you are more that likely subject to all of the ADA rules, regulations and penalties for noncompliance. The slightest infraction of the regulations, whether intentional or not, if brought to the attention of the Justice Department, will put you and your company against the United States Government. The massive financial, legal, and manpower resources available to the Department of Justice effectively removes any glimmer of hope for a fast and reasonable settlement. Since it is clear that the Department of Justice will, in almost every case, win, it is important to take all available compliance actions to avoid the abusive and unfair litigation described herein. Regulation 36.503 (3)(i) provides for a penalty of up to $50,000 for a first violation. Regulation 36.503 (3)(ii) provides a penalty of up to $100,000 for the second and subsequent violations. In addition to these harsh penalties, the regulations also make provisions to require your firm to pay all legal expenses of the one who brings the action against you. The one window of opportunity to be found is in Regulation 36.503 (3)(d) wherein it states, “. . . the Court shall give consideration to any good faith effort or attempt to comply with this part.” However, the ADA Handbook goes on to state in its analysis of this regulation that “The “good faith” standard referred to in this section is not intended to imply a willful or intentional standard. . that is, an entity cannot demonstrate good faith simply by showing that it did not willfully, intentionally or recklessly disregard the law.” In other words, “I didn’t intend to violate the regulations.” Is not a defense. The only defense that you can hope to use to reduce the amount of penalty to be levied against you is to take action now to bring all floors surfaces covered under the ADA in compliance with the ADA regulations. The ADA Handbook specifically lists and includes as public accommodations restaurants, hotels, theaters, shopping centers, retail stores, dry cleaners, laundromats, doctor’s offices, pharmacies, libraries, parks, private schools, day care centers, convention centers, hospitals, amusement parks, health spas, bowling alleys, and zoos.
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