In recent years, several of my clients have been threatened with lawsuits for allegedly violating Title III of the Americans with Disabilities Act. Title III of the ADA ensures that individuals with disabilities are not discriminated against by owners or operators of places of public accommodation such as shopping centers, restaurants, offices and amusement parks. Typically, Title III claims focus on the ability of people with disabilities to fully access stores and other places of public accommodation. Here’s an article from AL.com a few years ago discussing the increase in these types of lawsuits: ADA Lawsuits Against Businesses on the Upswing. The issue has become significant enough that the United States House of Representatives has passed the ADA Education and Reform Act. Here’s an article by the Alabama Retailers Association discussing that legislation: ADA Reform Act. The Senate has not yet passed or approved similar legislation, however.
Therefore, businesses need to be proactive in protecting themselves from ADA claims. The best way to protect yourself is to hire an expert (usually an architect) to review your business and ensure that it complies with the ADA’s accessibility requirements. But, what happens if you get a letter, or a lawsuit, claiming that you’ve violated the law?
At that point, you have a business decision to make. No matter what, if you’ve truly violated the ADA (even unintentionally) you need to fix the problem. But, many times these lawsuits focus on highly technical issues that leave room for debate over whether there’s been a violation. In other cases, the “fix” requested by an ADA customer may be more expensive than is “readily achievable.” You need to consider all available financial factors (such as cost of repair and cost of paying your attorney) in deciding whether you want to fight a claim that you violated the ADA.
In most cases, the central issue won’t be the cost of repairs, but the cost of attorneys’ fees to pay the lawyer representing the disabled customer. Many times, lawyers file lawsuits for small violations of the ADA in hopes of generating substantial legal fees that can be awarded by a judge to a “prevailing party” in an ADA case.
In most cases, I advise my clients to fix any alleged ADA violations that can be quickly remedied. To that end, one strategy is to fight over matters that are not truly violations, or “solutions” that are not readily achievable. That strategy was followed successfully by the business-owner in Kennedy v. Omegagas & Oil, LLC, No. 18-10102, 2018 WL 4183462 (11th Cir. Aug. 31, 2018).
In Kennedy, it appears that the business-owner drew the metaphorical “line in the sand.” A wheelchair-bound customer visited a gas station/convenience store and noted numerous violations of the ADA including: an improperly marked and blocked handicapped parking space; unsecured floor mats; a pedestal sink in the bathroom, which would prohibit her from utilizing the sink; sink and doorknob hardware in the shape of knobs, which require gripping and twisting to operate; missing or improperly placed grab bars near the toilet; a flush control on the incorrect side of the toilet; and a paper towel dispenser located too high to be reached. The owner quickly began work to fix those alleged violations. Nevertheless, the parties argued over the plaintiff’s request to increase the maneuverable space in the store’s bathroom.
By the time of trial, every alleged violation except the maneuverable space was fixed. As a result, the trial judge found that the ADA claims for those violations were “moot,” and that the plaintiff did not possess a claim. With regard to the maneuverable space issue, the trial court found that the renovations required to obtain sufficient maneuverable space were not “readily achievable.” In an existing building, the ADA states that discrimination includes a private entity’s “failure to remove architectural barriers … where such removal is readily achievable. ” 42 U.S.C. § 12192(b)(2)(A)(iv)). “Readily achievable” is defined under the ADA as “easily accomplished and able to be carried out without much difficulty or expense.” 42 U.S.C. § 12181(9).
The trial judge found that the plaintiff failed to meet her burden of demonstrating renovations for more maneuverable space were “readily achievable.” In particular, the plaintiff failed to rebut the business owner’s evidence that it would cost $80,000 or more, and would require him to close the gas station and store during renovation.
The Eleventh Circuit carefully reviewed the trial court’s decision and affirmed it on appeal. I have not talked to any of the lawyers involved in this case, but I strongly suspect that the real issues were “mootness” and attorneys’ fees. Based upon my experience, I believe that the plaintiff’s attorney asked to be paid an attorneys’ fee for obtaining a remedy of the violations that were quickly fixed by the gas station/convenience store owner. If the owner paid a fee to the lawyer, I suspect that the plaintiff would have agreed that maneuverable space in the bathroom would not be “readily achievable.”
But if a business-owner refuses to payoff the plaintiff’s attorney, that attorney can only get paid if he goes to court and persuades a judge that there’s been a violation of the ADA. In short, the business owner was taking a risk. If the trial judge found that the claims weren’t “moot,” the owner would have to pay attorneys’ fees. Similarly, if the trial judge found that the improving the maneuverable space fix was “readily achievable,” the owner would have to pay attorneys’ fees.
Some business owners might be thinking: “Great! I’ll fix the cheap problems and fight the expensive ones, and everything will turn out OK.” Not so fast, my friend! You need to carefully review all factors with your lawyer before making this kind of final decision in an ADA public accommodation case. The trial judge possesses a tremendous amount of discretion in determining whether accessibility issues are “moot.” A different judge could easily have reached a different conclusion and imposed liability on the gas station/convenience store owner — even for the problems that he quickly fixed. So, proceed cautiously, but know that, in some cases, there are defenses to Title III ADA public accommodation claims.