Beware of Spies Bearing Wheelchairs

Do you have an architectural barrier that prevents a disabled person from using your premises? If so, then you have to remove that barrier if removal is “readily achievable” without undue cost or effort. The Americans with Disabilities Act (ADA) Title III contains accessibility requirements for public buildings and facilities. These regulations apply to anyone who owns, leases, or operates a place of public accommodation and this includes restaurants and bars. If your establishment is not ADA compliant, it is in violation of the law. Unlike local building and zoning laws, there are no grandfather provisions in Title III of the ADA. These federal laws apply to all establishments. You may be surprised to learn that 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.

We have all heard of ambulance chasers. Well, there is a new breed on the prowl. Disabled individuals are working with attorneys to litigate against establishments that are not ADA compliant. Why? The establishments pay the attorneys fees for the disabled person’s lawyer, making a no-risk-all win-situation for the plaintiff.

These cases often start in much the same way. The disabled person travels to a restaurant or bar to 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 that asks for the restaurant or bar to pay the attorney’s fees. 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. Most business owners do not know they are not ADA compliant until a lawsuit is filed.

What can you do? The best defense is to ensure your business is ADA compliant. However, many businesses are unaware of the potential violations before they are served with a lawsuit. If you have received a summons and complaint for one of these suits, you should determine whether any applicable insurance policies cover ADA violations that can save a business owner from having to fight any claims itself. You should also review your lease to determine exactly who is liable for ADA. If after these two have not been in your favor, it is time to get a defense attorney.

There are several viable defenses to these claims. In order to have standing to bring a claim, an individual must be disabled and they must intend to return to the business. Thus, plaintiffs who live far away may be subject to this defense because they reasonably will not be visiting again and will not need accommodations. Another defense is to argue that attorney fees should not be awarded to the plaintiff since the business could have, and would have, remedied any violations without the filing of a lawsuit. Yet another defense is to argue that removal of architectural barriers is not readily achievable. This is the hardest defense and requires the most evidence.

If you have questions regarding your ADA compliance, it is recommend you consult with counsel to determine your potential exposure. Your architect or insurance agent might also be good resources for understanding your responsibilities and whether you are already ADA compliant. As always, the cost to prevent a problem is far less than the cost to get you out of a problem once it exists. Translated: positive ROI to get advice in advance.