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The Americans with Disabilities Act (ADA) is most frequently cited in reference to the employer-employee relationship; however, Title III of the ADA contains accessibility requirements for public buildings and facilities, including regulations related to signage, parking spaces, curbs, height of service counters, and size of restrooms. These regulations apply to anyone who owns, leases, or operates a place of public accommodation, which includes almost all businesses that serve the public. Any public facility that is not ADA compliant is in violation of the law, and contrary to popular belief, there are no grandfather provisions in Title III of the ADA. Essentially, if you have an architectural barrier that prevents a disabled person from using your premises then you have to remove that barrier if removal is “readily achievable.” Readily achievable means the removal may be accomplished without undue cost or effort.
The problem for franchisors and franchisees is that they may not know they are not ADA compliant until a lawsuit is filed. With astounding frequency, lawsuits are being filed against businesses, restaurants, bars, and hotels that allege violations of Title III of the ADA. The rise in these lawsuits is attributed to the fact that Title III of the ADA permits a prevailing plaintiff to recover attorney fees. Certain plaintiff’s attorneys do little else other than filing Title III lawsuits. Some have even taken out advertisements seeking local attorneys to partner with them in jurisdictions in which they do not practice. Typically, the plaintiff’s attorney will enlist the help of a disabled individual. In fact, some of these individuals file so many suits that when another attorney in our office advised me his client had been sued for an ADA violation, I immediately correctly guessed the identity of the plaintiff and his counsel. The standard operating procedure is that the disabled individual, upon his own initiative or at counsel’s direction, will travel to a business and assess whether or not it is ADA compliant. If the business is not in compliance, the disabled individual will report back to his or her attorney who will then file a lawsuit. In most cases, the business will not receive any advance warning, such as a demand letter, because the plaintiff’s attorney does not receive any fees if the business voluntarily agrees to remedy any violations. The lawsuit will name either the business or the landowner — the plaintiff’s attorney really does not care which one he or she names because both may be liable for any violations.
The defense of these lawsuits can entail significant costs. As mentioned, a prevailing plaintiff generally is awarded attorney fees. Second, the determination of whether a business is ADA compliant and/or whether the removal of architectural barriers is “readily achievable” requires the testimony of an expert witness.
The best defense is to ensure your business is ADA compliant. Attorneys, consultants, and architects can assist in auditing your business for compliance. Additionally, determining whether any applicable insurance policies cover ADA violations can save a business owner from having to fight any claims itself. Likewise, reviewing lease provisions can assist a business owner in determining exactly who is liable for ADA violations as many lease agreements contain indemnification provisions.
If a lawsuit is filed, attacking the plaintiff’s standing is also a viable defense. In order to have standing to bring a claim, an individual must be disabled and they must intend to return to the business. In some instances, lawsuits have been brought by individuals who live hundreds of miles away from the business. A little background research on the particular plaintiff can go a long way toward establishing a defense. In instances where the plaintiff does not reside in close proximity to the business, you can attack standing on the basis the individual does not legitimately intend to return to the business.
The volume of these lawsuits certainly has not gone unnoticed by the courts, nor has the fact that the same disabled individual may be the plaintiff in numerous lawsuits. Accordingly, another defense is to argue that attorney fees should not be available to the plaintiff as the business could have and would have remedied any violations without the filing of a lawsuit.
Another defense, albeit a potentially expensive one, is to argue that removal of architectural barriers is not readily achievable. A determination of what is “readily achievable” requires consideration of the expense of the proposed remedy and the business’s overall financial resources. As such, what might be “ready achievable” for one business may not be for another business. Generally, this defense will require expert testimony.
Keep in mind, obtaining building permits and compliance with local zoning laws and ordinances does not mean your building complies with the ADA regulations and does not provide you with a defense to an ADA claim. If you have questions regarding your ADA compliance or provisions in your insurance policies or lease agreements it is recommend you consult with counsel to determine your potential exposure.