AMERICANS WITH DISABILITIES ACT COMPLIANCE
Any California vineyard or winery that has facilities such as tasting rooms, picnic areas, etc must
comply with the Americans with Disabilities Act (ADA) and its related California laws. These
laws are very specific as to design and construction requirements and most California businesses
are not fully compliant. The risk is high. California law encourages ADA lawsuits by disabled
persons by guaranteeing them minimum payments per violation and usually allowing them to
force the business to pay the attorney’s fees of the disabled person. A violation could be
something as simple as a non-compliant doorway threshold.
I.
HOW DOES THE ADA APPLY TO THE WINE BUSINESS?
Wine-based businesses that provide facilities available to the public, even if invitation only,
generally must comply with the ADA because such facilities are “Public Accommodations.” The
ADA also applies in employment laws as well, though compliance in that area is not addressed
in this section. If you operate a tasting room, a store, rent out you winery buildings for special
events like weddings or banquets, or perhaps even give tours, then you must ensure you comply
with the ADA.
II.
WHY DO I NEED TO WORRY ABOUT ADA COMPLIANCE?
The cost of not-complying with the ADA’s design requirements can be large. Plaintiffs now
receive $6,000 minimum damages per violation and usually can force the wine-based business to
pay their attorney’s fees. Wineries have been one of several categories of businesses targeted by
disabled plaintiffs in recent years. Most winery owners feel blindsided the first time they are
sued because they relied upon local building code inspections and plan approvals for compliance
with the law. Unfortunately, local building official approval of your facility will not resolve
ADA compliance requirements. To avoid having to pay tens to hundreds of thousands of dollars
to plaintiffs and their attorneys, you need to upgrade your facility as best as you are able as soon
as you can.
III.
WHY IS CALIFORNIA COMPLIANCE A LARGER ISSUE THAN IN OTHER
STATES?
California is hard hit with ADA litigation because the laws encourage that litigation by
promising minimum damages and attorney’s fees to prevailing plaintiffs. “Prevailing” is not that
hard since nearly every business in California has non-compliant conditions some of which can
amount to a violation of rights of the disabled person. So far, the legislature has done nothing to
resolve this problem and ADA lawsuits have been spreading across the state and into most
business sectors.
IV.
MUST OLD BUILDINGS AND FACILITIES BE COMPLIANT?
Yes. This is the most common misconception about the ADA. The age of a building can affect
when a building must be compliant and can create an opportunity to seek some limited
exceptions, but for the most part, if you own a facility and have not already established ADA
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compliance, then you are vulnerable and exposed to costly litigation. Buildings constructed
before 1992 can sometimes delay modifications for a period of time. Significantly old buildings
with historical value can also sometimes avoid compliance obligations. A few specific
exceptions can also be made by local building officials. All of these exceptions, however, require
foresight and pre-action to be achieved.
V.
WHAT IF MY FACILITY HAS HISTORICAL VALUE?
Historical buildings, as noted above, can qualify for some exceptions to the ADA. This exception
is limited and difficult to accomplish. However, and thus if often of limited value. For particular
features that ADA compliance would require destroying, or when ADA compliance would overall adversely affect the historical values of a structure, then you may be able to obtain special
exceptions for specific requirements.
VI.
WHAT REQUIREMENTS DOES A TASTING ROOM HAVE TO MEET?
The Tasting room and general merchandise store areas of a winery have to meet a significant
number of design requirements that are intended to ensure that a wheelchair bound or perhaps
visually disabled or cane or walker-dependent guest would be able to access the features of the
facility. Obviously that means be able to taste wine, explore the store and room and purchase
merchandise or wine. Chief among the requirements and the most noticeable non-compliant
feature in a tasting room is the tasting counter. A section of the counter, at least 60 inches wide,
must not exceed 34 inches in height and have a knee clearance area under it. Using a separate
table or counter in a different location to meet compliance requirements is very problematic
because, depending on the circumstances, it may not be compliant, and in any case will often be
perceived as being non-compliant by prospective plaintiffs. You must also provide an accessible
transaction counter if your tasting counter does not serve that function and must ensure your
doors, doorways, and aisles meet numerous height, width slope and hardware requirements.
VII.
WHAT REQUIREMENTS APPLY TO RESTROOMS AND WHEN DO THEY
APPLY?
If guests or customers can use the restrooms then they must comply. Compliant restrooms are
extremely difficult to establish because the requirements are burdensomely numerous and often
create limited design choices. Many older restrooms simply are not large enough to be made
compliant. Restrooms have several space requirements, for the toilet, for the sink and in the
general accessible area. Sinks and toilets also have numerous height, width and hardware
requirements. All the accessories in a restroom, such as the paper towel or soap dispenser have
hardware and height requirements. Doors and doorways have requirements. There are two
specific signs required outside every restroom at specific locations as well. While some restroom
fixes are expensive there are usually many simple fixes that can be accomplished immediately
once you know what to do.
VIII. WHAT REQUIREMENTS APPLY TO PARKING AND EXTERIOR AREAS?
Your parking lot and outdoor paths and surfaces must meet design requirements if you have a
“public accommodation” on the premises. The requirements are also numerous but can generally
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are broken down into signage, slope, and surface requirements. A sign is required at all entrances
that warns visitors that their car can be towed and the driver fined for parking in spaces
designated for disabled persons. This so called “tow” sign is the first impression any prospective
plaintiff sees. A good tow sign is a good start and might cause the prospective plaintiff to move
on down the road to a less-compliant facility. A bad tow sign, or worse yet, no tow sign, is akin
to advertising your non-compliance.
Signage requirements also extend to the signs and striping of parking spaces. You must also
provide a “flat” surface in the parking area and meet maximum slope requirements for the path
of travel from the parking spaces to the attractions. Steps and stairs also have design
requirements. Many of these features can also be spotted by an experienced disabled plaintiff and
thus can act as deterrents or attractants of lawsuits much like the tow sign.
IX.
HOW CAN I BEST COMPLY WITH THE ADA?
Upgrade your facility as soon as possible. Get an audit or inspection to identify non-compliant
features and those that are more likely than others to attract a lawsuit. Do the inexpensive repairs
immediately. Do the expensive ones that are most likely to attract a lawsuit next. Resolve the last
issues. Set up a regular re-inspection program to identify damaged features that need repair.
Train employees regarding ADA compliance requirements and their implementation at your
wine-based business.
X.
HOW CAN I AVOID AN ADA LAWSUIT?
Perfect compliance is very difficult to accomplish. A single non-compliant condition might be
enough for a plaintiff to build a successful lawsuit upon. Moreover, a lawsuit is costly even if
you are able to quickly win it. Thus, a good strategy is to focus on lawsuit avoidance with the
ADA. Lawsuit avoidance requires fixing the conditions that attract lawsuits such as the tow sign
and exterior features easily identified by passing prospective plaintiffs. ADA lawsuit avoidance
also requires that you ensure well meaning disabled guests do not encounter barriers at your
tasting room or winery that upset them enough to turn them into plaintiffs. This means fixing the
conditions that will actually prevent them from accessing your facilities and enjoying a good
wine tasting experience. It also means training employees to identify situations where things are
not going well, ADA-wise, and resolving them on the spot. With a good lawsuit avoidance
strategy in place, you can then attend to the goal of achieving perfect compliance.
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