01 Apr Disability Access Lawsuits: Is Your Business a Target?

If you own a business that is open to the public, there is a chance that at some point you will be sued for a violation of the ADA — the “Americans with Disabilities Act” — by a lawyer whose practice is devoted solely to “ADA enforcement.” Many entrepreneurs and small business owners consider these lawsuits to be “shakedown” lawsuits, calculated to line the pockets of trial lawyers, for little or no public benefit. But the truth of the matter is that the overwhelming majority of these lawsuits are meritorious, and the lawyers who are filing them against small businesses, restaurants, and the like are doing exactly what Congress and the California Legislature intended for them to do. Indeed, if you are reading this article and your business is open to the public, chances are good that your facilities violate some, and perhaps many, of the (obscure) requirements of the ADA.

Here are some strategies for staying within the letter of law, respecting the rights of the disabled, and reducing your legal liabilities.

The ADA and Its Requirements

Years ago, buildings were designed and built without considering the needs of wheelchair-bound or other physically-impaired visitors who might need access to the premises. Since the ADA became law in 1990, public facilities across the country have been built or modified to include accommodations such as wheelchair-accessible restrooms, entrance ramps, power-assisted doors, and even enhanced listening devices for the hearing-impaired. Such adaptations are meant to ensure that facilities that claim to be “open to the public” are truly open to all members of the public, and that people with physical impairments, disabilities or medical conditions are able to have access to those facilities to an equal degree as people without such conditions.

Some barriers to access are less obvious than others, and business owners may not even be aware that such barriers exist at their establishments — or that they violate the law. For example, each of the following is considered a “barrier to access” under the ADA:

a drinking fountain with a spout more than 36 inches above the floor, or with a water flow less than 4 inches high;
a dressing or fitting room that does not have a bench between 20 to 24 inches wide, at least 42 inches long, and with the seat fixed 17 to 19 inches above the floor;

a restroom mirror for which the bottom edge of the reflecting surface is more than forty inches above the floor; and
a self-service drink dispenser or condiment station higher than fifty-four inches above the floor.

These detailed requirements (and hundreds more) are described in the ADA Accessibility Guidelines for Buildings and Facilities (“ADAAG”), which are available online at www.access-board.gov/adaag.

ADA Enforcement Actions — A “Cottage Industry”

Although few would disagree with the notion that all individuals should have “equal access” to public establishments, regardless of physical disability or medical condition, many businesses still operate in violation of the precise technical specifications of the ADAAG — usually unintentionally. Unfortunately, the first inkling many small businesses have to the existence of these violations is the misfortune of ending up on the wrong end of a lawsuit. Even though the ADA is a federal law, California’s Unruh Civil Rights Act and the California Disabled Persons Act (“CDPA”) both provide that a violation of the federal ADA qualifies as a violation of state law. In addition to money damages and an injunction against further violations, such lawsuits routinely seek to recover any attorneys’ fees the plaintiff incurred to investigate and pursue the lawsuit.

Because of the important social policies underlying these laws, damages are awardable for even unintentional, inadvertent or relatively minor violations — and the price tag can rise dramatically for intentional or egregious violations. While the damages awardable for an innocent violation are relatively modest — $4,000 per violation under the Unruh Act, and $1,000 per violation under the CDPA — the additional attorneys’ fees (which are mandatory in some cases) can easily overwhelm small businesses that are already struggling to survive the current economic environment. Of course, the cost of defending the litigation must be added to the cost of remedying the violation, as well as paying any attorneys’ fees the court awards to the plaintiff.

In recent years the availability of an attorneys’ fee award to successful plaintiffs has become the “tail wagging the dog,” resulting in what many businesses consider to be “shakedown” lawsuits over items like restroom mirrors that are just a few inches too high. A federal judge recently observed that the ability to profit from ADA litigation has given birth to a “cottage industry” for some lawyers, who send a handful of disabled clients out to visit as many businesses as possible, in search of every conceivable technical violation of the ADAAG, and who then file lawsuits seeking damage awards that would put many of the targeted establishments out of business.

As one judge noted in his ruling in an ADA case, “Faced with the specter of costly litigation and a potentially fatal judgment against them, most businesses quickly settle the matter.”

How Can You Protect Your Business?

If your business is accessible to the public, you should consider having it inspected by a Certified Access Specialist (CASp) — an architect, engineer or other qualified individual who has been certified to inspect public structures and areas, and to make a determination whether they comply with the ADAAG and other “construction-related accessibility standards.” The CASp will issue a written report stating whether the site complies, noting any corrections that are necessary to bring the site into compliance. If you are later sued, you can force a stay (stoppage) of the lawsuit and an expedited evaluation conference, by disclosing the inspection report to the court and the plaintiff. You also may ask the CASp to issue an inspection certificate which you can post on your property, to dissuade potential plaintiffs (and their counsel) from even filing a lawsuit. The inspection and certification process is a small price to pay for minimizing exposure to lawsuits. Be aware, however, that the CASp program is still relatively new, and there currently are only about 165 certified specialists in California, although every local agency is required to have at least one CASp building inspector by July 1, 2010. (A list of CASps is available at https://www.apps.dgs.ca.gov/casp/casp_certified_list.aspx.)

The most obvious way to avoid being subjected to an ADA lawsuit — and the one the laws were enacted to achieve — is for your business to meet or exceed all ADA standards. Full compliance (at least to the extent it is “readily achievable”) is not only the right thing to do under the law, but is also the best insurance policy against expensive lawsuits. You also may also be eligible for a federal tax credit and/or a tax deduction for making access-related changes (consult your tax professional regarding details and eligibility).

Many of the ADAAG requirements apply only if the subject premises or amenities are open to the public; however, it is possible that the law may not require public access to those places. Thus, for some businesses, one solution to ADA compliance issues may be to restrict the amount of “public access” they provide — for example, by removing all mirrors from restroom facilities, or perhaps even making those facilities off-limits to customers entirely. This solution is not available to all businesses — certain restaurants, for example, are required to provide public restroom facilities — but if your business has the option of providing such amenities, then restricting public access may be an option worth considering.

What If You Are Sued?

If you are sued for an alleged ADA violation, and you do not have a CASp inspection certificate, you will either need to defend the lawsuit or settle the claim. Access claims are difficult to defend successfully, because the law does not provide a “good faith” exception to compliance — if your premises do not comply with the ADAAG or other legal standards, there is a good chance the plaintiff will succeed on at least some portion of the relief being sought, and that success will open the door to an award of attorneys’ fees, payable by you. Thus, the earlier you can resolve the matter and minimize the legal costs on both sides, the better.

This doesn’t necessarily mean you should quickly kowtow to all of plaintiff’s demands: some defendants have succeeded in defending against ADA claims, and some have even been able to “turn the tables” and recover an award of attorneys’ fees from the defeated plaintiff. Although the odds are rarely in a defendant’s favor in ADA lawsuits, unless they are hopelessly stacked against you, there likely is room for negotiation with the plaintiff, as the plaintiff’s potential recovery depends on a host of factors that differ from case to case. In most situations, an hour or two of an attorney’s time to evaluate your options is money well spent.

In addition to contacting a lawyer if you are sued, be sure also to tender the claim under your insurance policy. Many newer policies exclude or limit coverage for lawsuits based on allegations of access violations, but there is rarely a downside to tendering the claim.