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.