United States: Minimizing ADA Liability for Public Access To Businesses

"Sue, settle and move on to the next suit." That is how one federal judge in California described the "modus operandi" of a wheelchair-bound man who had brought no less than 156 ADA lawsuits in just the past year, all with the aid of the same law firm. For nearly 15 years, disabled individuals have been able to bring private lawsuits seeking an injunction to require a business that is open to the public to take reasonable actions to remove barriers to access for the disabled. That part of the ADA enjoys widespread support. Like most civil rights statutes, however, to ensure that private enforcement actually occurs, the ADA allows prevailing plaintiffs to recover reasonable attorney’s fees. Therein lies the problem that has given rise to a cottage industry, populated by a network of mostly small law firms cranking out cookie cutter complaints (sometimes comically identical, even down to the typos) on behalf of professional plaintiffs ready to rack up "frequent courthouse miles." In many cases, the person on whose behalf the suit is brought has never even tried to patronize the business sued – he or she has only attempted to obtain access to the business, if at all, at the behest of counsel who wishes to bring the suit and claim the fee prize. Serial complaint-filers, defense attorneys say, frequently find it hard to recall details of the businesses they claim to have visited. Their lawyers’ allegations read like boilerplate, sometimes repeating the same phrasing used in earlier complaints, or making strange blunders such as suing a hotel for lack of pool access even though it doesn’t have a pool. In many cases, a personal injury claim is tacked on, with the individual claiming that he was injured as a result of trying to gain access around some type of architectural barrier. In the case of the infamous repeat plaintiff in California, he claimed to be injured in as many as four different establishments in the same day.

In recent years, particularly in Pennsylvania, Florida and California, retail businesses and restaurants have faced an onslaught of lawsuits – frequently brought by the same plaintiffs – alleging that their establishments violate Title III of the Americans with Disabilities Act ("ADA"). Without a doubt, many such suits are legitimate, however, many establishments have been stunned because the claims come after the business has incurred the expense of remodeling to address ADA issues. In addition, in nearly all cases, the business has never received any type of informal request for modification before receiving a copy of the Complaint. Many observers note that this proliferation of lawsuits by "career plaintiffs" can be traced to the availability of attorney’s fees to successful claimants. Even many early proponents of the ADA’s "public accommodations" requirements now believe that this Act is being misused to line the pockets of attorneys without providing any real advances to the disabled community. Indeed, after a rash of suits in Florida by the same plaintiffs represented by the same law firm, a Florida congressman introduced legislation that would have required ADA complainants to give businesses notice of any violations and 90 days to fix them before resorting to lawsuits. But strong opposition from disabled-rights groups got the bill tabled.

Whatever the merits, business owners who know the basics can avoid exposure or minimize the likelihood of success of such suits, rendering them profitable to pursue. Being proactive on ADA issues is also good business.

Title III of the ADA prohibits discrimination based on disability by private entities in places of public accommodation, i.e., facilities open to the public. 42 U.S.C. § 12182(a). The term "public accommodations" encompasses a wide range of facilities including shopping centers, restaurants, movie theaters and bowling alleys. Under the ADA, different requirements apply to new construction occurring after the enactment of the ADA in 1992 and alterations to existing structures built before 1992. Alterations after January 26, 1992 to existing places of public accommodation must be accessible to the maximum extent feasible. The architectural standards for both new construction and alterations are contained in the ADA Accessibility Guidelines issued by the Architectural and Transportation Barriers Compliance Board.

Unfortunately, targets for ADA lawsuits can be located with relative ease because the regulations for access to buildings predating the ADA are vague at best and are subject to manipulation by plaintiffs’ attorneys. The guidelines for new construction lay out hundreds of requirements—everything from the permissible height of countertops and mirrors in newer or renovated buildings to how heavy swinging entrance doors can be to the exact location where grab bars must be located in toilets, and on and on. A bathroom alone must meet more than 50 different standards. No such specific requirements exist for existing facilities but they provide a handy guide to use as a model – a model that provides a nearly impossible standard for older buildings to meet. Even cramped retail store layouts may violate the ADA, since they prevent disabled customers from negotiating aisles and reaching every bit of merchandise.

Generally, a business must maintain in operable working condition the features that make a place of public accommodation accessible in order to comply with the mandates of the ADA. These include maintaining accessible routes, elevators, ramps, and doors.

The overwhelming majority of alleged violations concern "architectural barriers" to access. The ADA defines discrimination under the Act to include "a failure to remove architectural barriers, and communication barriers that are structural in nature, in existing facilities … where such removal is readily achievable." 42 U.S.C. § 12182(b)(2)(A)(iv) (emphasis added). Title III defines "readily achievable" as "easily accomplishable and able to be carried out without much difficulty or expense." 42 U.S.C. § 12181(9). Several factors are considered in determining whether removal of a barrier is readily achievable including:

• the nature and cost of the action needed;
• the overall financial resources of the facility involved in the action, including the number of persons employed at the site and the effect on expenses and resources;
• the overall financial resources of the covered entity; the overall size of the business of the covered entity with respect to the number of its employees; the number, type, and location of its facilities; and
• the type of operation of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative or fiscal relationship of the facility in question to the covered entity.

42 U.S.C. § 12181(9)(A)-(D).

Even if a property owner can demonstrate that the removal of a particular barrier is not readily achievable, the ADA also defines discrimination to include "a failure to make such goods, services, facilities, privileges, advantages, or accommodations available through alternative methods if that would be achievable. 42 U.S.C. § 12182(b)(2)(A)(v) (emphasis added). Thus, owners of public facilities must consider not only whether removal is readily achievable but also, if removal is not a feasible option, alternative methods of addressing access problems presented by architectural features.

The ADA suggests, but does not require, that public accommodations set priorities in determining which barriers to remove first. The recommended priorities, in order, are:

• Providing access from public sidewalks, parking, or public transportation. These measures may include installing an entrance ramp, installing power doors, widening entrances and providing accessible parking.
• Providing access to those areas of a place of public accommodation where goods and services are made available to the public. These measures include adjusting the layout of display racks, re-arranging tables, providing Braille and raised character signage, widening doors, providing visual alarms and installing ramps.
• Taking measures to provide access to restroom facilities. These measures include removal of obstructing objects such as towel holders, changing tables or vending machines, widening doors, installation of ramps, providing accessible signage, widening of toilet stalls and installation of grab bars.
• Taking any other measures necessary to provide access to goods, services or facilities.

BNA’s Americans with Disabilities Manual, No. 130, 30:0006.

One of the most significant provisions of the ADA is, of course, the section dealing with recovery of attorney’s fees. The ADA permits the award of a "reasonable attorney’s fee, including litigation expenses, and costs" in the discretion of the court, to a "prevailing party." 42 U.S.C. § 12205. In general, the party claiming the fees bears the burden of demonstrating that the demand is reasonable.

The test for determining a prevailing party is twofold. The first question is whether the plaintiff achieved some of the benefit sought by the party suing. The second question relates to causation – "whether the litigation constituted a material contributing factor in bringing about the events that resulted in obtaining the desired relief." In evaluating the success of a party, the most important issue is a comparison of the relief sought and the relief actually obtained.

The United States Supreme Court dropped a bomb on ADA plaintiff’s lawyers when it decided the landmark case of Buckhannon Bd. and Care Home, Inc. v. West Virginia Dep’t of Health and Human Res., 532 U.S. 598 (2001). The Court identified two judicial outcomes under which a party may be considered "prevailing" for the purposes of awarding attorney’s fees: (1) an enforceable judgment on the merits, or (2) a settlement agreement enforceable through a court-ordered consent decree. The former provides the necessary foundation for a plaintiff’s status as a prevailing party because the plaintiff has received at least some relief based upon the merits of his or her claim. The latter is acceptable, even without an admission of liability, because it is a "court-ordered change in the legal relationship" between the parties. Conversely, however, any changes implemented voluntarily by the facility or even following a settlement agreement not embodied in a consent decree are not taken into account in assessing whether the plaintiff is a prevailing party.

Thus, a prompt evaluation of any readily achievable changes sought by the plaintiffs followed by settlement discussions is a wise course of action after a lawsuit is initiated. Even in the absence of an agreement, the changes that can be made without significant expense should be undertaken immediately to reduce the likelihood of an eventual award of attorney’s fees, in addition to the fact that it makes good business sense to do so.

Some business groups have proposed legislative solutions to the proliferation of repeat plaintiffs in ADA suits. In an effort to remedy access problems while taking the money out of the equation, they have proposed a notification requirement before complainants can file suit, so as to provide a safe-harbor period during which businesses could carry out needed alterations. Disability rights groups oppose such a requirement and the Bush administration has taken no official position on ADA notification. At al hearing of the House Committee on Small Business, Kevin Maher of the American Hotel and Lodging Association said that, in addition to California, Florida and Pennsylvania, a number of other states around the country had started to see mass filings, including Hawaii, North Carolina, Tennessee, and Oregon. So, absent a legislative lifeboat, what is a responsible business owner to do?

First, be proactive. The Department of Justice maintains an ADA home page that is loaded with useful information to permit a business to assess potential areas of vulnerability and suggest cost-effective approaches to help in avoiding a lawsuit ever being brought. Check it out at http://www.usdoj.gov/crt/ada/adahom1.htm. Second, if you are served with a Complaint, ignore the "advice" that may come in the cover letter that you don’t have any defenses so you should not bother to retain an attorney. Third, research both the plaintiffs and the law firm to determine whether you are dealing with a legitimate issue with a real patron or a complaint factory. If the latter, then make sure the judge knows about it. Finally, assess the merits of the specific complaints with an architect experienced in ADA issues and address any valid complaints before the entry of any court order to minimize, or avoid entirely, any award of attorney’s fees.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.