The Americans with Disabilities Act and your retail properties and services

In addition to compliance with financial and securities regulations, financial institutions must also be mindful of laws and regulations affecting a financial institution’s responsibilities to disabled Americans.

As a member of the State Bar of California’s Financial Institutions Committee, I have the opportunity to hear interesting speakers on timely issues directed toward general counsel, regulatory specialists and outside counsel for major financial institutions. JMBM Special Assets Team member and real estate attorney, Marty Orlick, recently gave an excellent presentation on the accessibility rules of the Americans with Disabilities Act (ADA). Marty is an expert at ADA defense and counseling having defended more than 400 ADA claims with many clients from financial institutions like Bank of America, Union Bank, and City National Bank. See his presentation and message by clicking the link below.

A message from Marty Orlick:

Many of us think of the ADA as the number of necessary ADA parking spaces in parking lots, reach-requirements for accessible teller spaces, and height requirements for ATM machines – and you would be right. However, over time, the ADA has expanded beyond removal of architectural barriers to accommodate advances in technology and the changed lifestyles of disabled Americans. Had I given the PowerPoint presentation two years ago, it would have been ten slides of inaccessible branches and 1 slide on “cyberaccessibility” or “tele-accessibility.” Today, there are accessibility guidelines for online banking, telephone banking, and new communication technology guidelines for ATM machines.

Why does the ADA matter? Retail bank and financial institution properties qualify under the ADA as “places of public accommodation.” “Public accommodations” are mandated by Title III of the ADA to ensure equal access for disabled Americans and are responsible for the removal of any architectural and communication barriers. Where barrier removal is infeasible, businesses must provide goods or services as an alternative.

My presentation offers an overview of the new Americans with Disabilities Act Accessibility Guidelines (“Guidelines”) as it relates to financial institutions. These “Guidelines” were recently published in the Federal Register on September 15, 2010, and include amendments to its predecessor, the 1990 ADA Standards. The amendments not only clarify existing technical and scope issues, which require architectural construction changes for new or altered branch facilities, but also new requirements for auxiliary aids and services to effectively communicate with deaf, hard of hearing, blind, and visually impaired customers. New “cyberaccessibility” regulations include guidelines for website accessibility and TTY/Telephone Relay Services (TRS) for blind and visually impaired customers. Cyberaccessibility and TRS services have been the focus of a number of pending lawsuits and Department of Justice (DOJ) investigations, and several prominent banks are on the throes DOJ TRS investigations now. Will PDA or “smartphone” banking be next? We think so.

In addition, the presentation offers suggestions on how a financial institution can protect itself from ADA litigation. The Safe Harbor Act is a clause in the ADA which protects some elements of businesses that are constructed or altered before March 15, 2012 and comply with 1991 ADA Standards. The CASp certification program in California involves hiring an “access expert” to inspect your property. While the certification does not provide full litigation protection, it will at least give you a sense of what type of ADA issues you may have so you can rectify them before you are litigated against.

To discuss any of the ADA issues in this presentation, call us. We can help guide you to safe harbor and find economical solutions that will satisfy ADA requirements.

Martin H. Orlick
(415) 398-8080
MOrlick@JMBM.com

This is Dick Rogan, bank lawyer and author of www.SpecialAssetsLawyer.com, signing off for now. Join us again soon to check out what’s new in the World of Workouts.

Year after year, day after day, workout professionals in the know rely on JMBM’s Special Assets Team™ to handle problem commercial and real estate loans. Whatever problem loans you have, chances are, we’ve seen it. Give us a call.

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Our Perspective. JMBM represents commercial banks, special servicers, private lenders, asset-based lenders, hard money lenders and factors. We help lender clients throughout the United States craft business and legal solutions to their commercial and real estate troubled loans. For more information, please contact Dick Rogan at RRogan@JMBM.com, or (415) 398-8080.

Richard A. Rogan is Chair of the JMBM Special Assets Team™. He also serves as the co-managing partner of JMBM’s San Francisco office and co-chair of its Bankruptcy Practice Group.

JMBM’s Special Assets Team™ has represented hundreds of lenders in California and throughout the United States. We regularly appear in bankruptcy courts, district courts and superior courts. We are proud to serve as trusted counsel and advisors who look for a business solution and try to help lenders find the best possible resolution for each troubled loan. Whether a loan is being newly documented, restructured or litigated, JMBM’s Special Assets Team™ has the skill, know-how and experience to solve your problem in a practical no-nonsense way.

NOTE TO CONSUMERS: As a matter of Firm policy, JMBM does not represent individual consumers who have disputes with their lenders. Many lenders have specialized consumer workout professionals who have the time to help consumer borrowers. There are many fine attorneys who specialize in representing consumers. Individuals with consumer lending problems should contact a lawyer or law firm who specializes in consumer insolvency and bankruptcy in their local area. When in doubt, we suggest you contact your local bar association’s Lawyer Referral Service. [For example, see Bar Association of SF or LA County Bar Association Lawyer Referral Services]

JMBM does not provide legal advice to consumers, and cannot respond to consumer inquiries.