"Drive-by" lawsuits under the Americans with Disabilities Act (ADA) are more prevalent than ever and continue to rise. Title III of the ADA requires businesses to provide goods and services to persons with disabilities on an equal basis as the rest of the general public. The regulations require that businesses remove architectural and communication barriers and provide equal access to persons with disabilities.
In 2017, 1038 ADA Title III lawsuits were filed in our Federal Court (Southern District of Florida) alleging that businesses were non-compliant with the accessibility requirements of the ADA. So far in 2018 over 800 such lawsuits have been filed, which means the number could nearly double this year. These lawsuits are generally filed by "testers" that "drive by" businesses and later bring lawsuits alleging ADA violations. During the last five years, one plaintiff alone filed more than 1,000 lawsuits against businesses in a cross-section of industries. So far this year he has filed over 140 such lawsuits.
If you have already experienced an ADA "drive by" lawsuit, you are familiar with the unnecessary costs and expense they create. If you haven't experienced an ADA "drive by" lawsuit, you should know that these lawsuits are primarily driven by the attorney's fees recoverable by the plaintiff's attorney (which could be tens of thousands of dollars) and less so by the accessibility of your business. Often the fees you pay to the "tester's" attorney will exceed the cost of bringing your facility into compliance.
Before you become the subject of a "drive-by" lawsuit, you should audit your business operations and take remedial steps to prevent such claims. In doing so you should note that "drive-by' lawsuits primarily focus on:
- Your physical facilities and, in particular, whether you have accessible parking spaces and accessible routes from the parking lot to the business entrance; whether there is an accessible entrance ramp; whether the doorway is wide enough for wheelchair accessibility; whether the door hardware is accessible; whether your shelves, tables, chairs, display racks, vending machines, or other furniture need to be repositioned for accessibility; whether your bathrooms are accessible; and whether your service counters and other customer areas are accessible;
- Whether your website is accessible to persons with visual or hearing impairments; and
- Whether you permit access to service animals.
In the next few days we will provide practical information to help you review your business operations and take remedial steps to prevent these claims.
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.