ADA 'drive-by' lawsuits are targeting restaurants

Steve Miller and Scott Fanning

More and more plaintiffs’ attorneys are targeting restaurants, bars and retail establishments in urban areas for “drive-by" lawsuits under Title III of the Americans with Disabilities Act (ADA). Despite its commendable purposes, the ADA has been increasingly abused by individuals, organizations and plaintiffs’ attorneys for monetary gain. Chicago, New York, L.A. and other metropolitan areas have developed into hotbeds for these cases. It is not unusual for a single plaintiff in these areas to file 200 to 300 lawsuits alone in a relatively short period. Fortunately, with an understanding of the anatomy of Title III cases, businesses can take proactive measures to deter and defeat these drive-by claims.

Demand letter

A Title III claim may start with a demand letter in the mail. The claimant may never have visited your establishment. A disabled individual, or just their attorney, can simply drive through a neighborhood and note each restaurant that does not have, in their view, an accessible entrance. Title III requires that public accommodations, such as restaurants and bars, remove all “physical barriers” to disabled individuals whenever it is “readily achievable” to do so. These barriers could be a stepped entrance, a narrow doorframe, a pathway that does not provide a sufficient turning radius for wheel chairs, an improperly striped parking space and so on. These are all potentially technical violations that are easily visible without ever setting foot in the premises.

At this stage, many Title III litigants will simply attempt a quick settlement for a few thousand dollars, and occasionally some modifications to the property. Even though a technical violation may exist, settlement may not be appropriate or feasible. For example, some technical violations may not be “readily achievable.” Readily achievable is defined to mean “easily accomplishable and able to be carried out without much difficulty or expense.” This analysis involves multiple factors, including the owner’s overall financial position.

Lawsuit

If these drive-by litigants cannot obtain a quick payday, the next step likely involves the filing of a lawsuit. In a Title III lawsuit, the defendant will be asked to remove any physical barriers and—most importantly—to pay the litigant’s attorney fees. Whether a physical barrier exists will be determined by Title III’s interpretive regulations, which specify a litany of specific architectural guidelines for everything from parking lots, entrances, elevators, pathways, seating and bathrooms. For example, if a bathroom does not satisfy the minimum width requirements, a technical violation may well exist and the court may order you to widen the bathroom.

It may come as a shock, but even in the case where the plaintiff has never entered your business, he or she still may be able to challenge any technical violations within the entire premises. After a complaint is filed, a plaintiff business may seek to have its own ADA compliance expert conduct an inspection of the entire property. Any technical violations found may become part of the lawsuit. In Title III lawsuits involving restaurants and bars, for example, plaintiffs tend to identify a number of common alleged barriers. For example, some of the commonly asserted exterior violations may include:

• lack of an accessible path of travel to the entrance, due to the lack of or an improperly constructed ramp or curb cut along the path of travel from the designated accessible parking spaces to the store entrance or a path of travel that exceeds the permitted slope

• improper hardware on the entrance doors (if it requires twisting or grasping) and excessive pressure needed to open the entrance doors

Title III’s interpretive regulations, and some courts, suggest that remedying these types of barriers is “readily achievable” under most circumstances. As for the interior areas, some of the more common barriers may include:

• too-high service counters/bars

• lack of accessible tables

• no accessible path of travel through the restaurant/bar

• lack of accessible restrooms including, but not limited to, the lack of grab bars, restroom fixtures mounted too high, restroom stalls too small

• inadequate clear floor space in which to turn a wheelchair around

Prevention

In light of the growing number of Title III lawsuits, a common question for many is what can be done to avoid such litigation. One approach is to consult with legal counsel or an accessibility consultant to identify the existence of any barriers to access at your facility, and prepare and implement an appropriate remediation plan. Remember to pay attention not only to the Title III public accommodation guidelines, but also to any applicable state, county or city guidelines. This will help deter potential lawsuits.

In addition, review and, if necessary, rewrite your personnel policies to direct employees to provide necessary assistance to disabled patrons. In the event your facility is sued, retain qualified counsel as soon as possible so that an appropriate litigation and remediation plan can be developed. As with the prevention of most discrimination-based lawsuits, taking appropriate preventive measures is the best defense against Title III lawsuits.

Steve Miller and Scott Fanning are attorneys with Fisher & Phillips LLP in Chicago. They both have extensive experience defending companies in ADA Title III lawsuits.