By D. Martin Warf, Matthew J. Aaronson and Ashley H. Story Whether you are a retailer with counters and aisles or a landlord with parking spaces and bathrooms, the Americans with Disabilities Act (ADA) likely applies to your business, and it can be enforced by either the Department of Justice or private citizens. Both are active around the country, but private party injunctive relief suits have seen recent increases. These suits can cost property owners thousands of dollars on top of the costs associated with bringing their property in line with the ADA's requirements. And those requirements are going up this year, beginning on March 15, 2012. There are a few defenses to these types of lawsuits, but a failed defense can lead to increased attorneys fees and costs. Exploring your options and circumstances with experienced counsel can lead to a quick resolution or a tailored defense.
Title III of the Americans with Disabilities Act generally provides regulations and specifications for the accessibility of public accommodations across the country. Anything a non-disabled patron can come in contact with, like entrances, parking spaces, sink heights and door widths, are typically regulated by the ADA so as to provide equal access to disabled patrons. Public accommodations are broadly defined within the Act to cover most privately held businesses that receive guests: malls, restaurants, bowling alleys, accounting firms. Thus, if you are a tenant or landlord who receives members of the public at your place of business, the ADA likely applies.
Enforcement of the ADA's requirements and regulations regarding removing architectural barriers that impede disabled patrons is not just the work of the Department of Justice (DOJ), but it can be litigated by private citizens. The DOJ has a wide influence, but its level of activity is fairly consistent. Private-party suits, on the other hand, are the ones on the rise.
A private party can sue any public accommodation that is not in compliance with the ADA for injunctive relief, which is essentially a request that the Court order the entity responsible for the facility to bring that facility up to applicable ADA standards. On its face, this is a laudable goal.
However, the Act also provides for the recovery of attorneys fees and costs associated with a successful prosecution. This would ordinarily cover the occasional "citizen's arrest" contemplated by the Act. But it also opens a door for a cottage industry of sorts for both individual plaintiffs and plaintiffs' attorneys.
Despite that cottage industry being historically prevalent in states like California, Florida, and Nevada, other states saw fewer complaints being filed. In the last 22 months, however, just two Plaintiffs have brought over 125 cases in North Carolina. Other states like Maryland and New York have also seen upticks. For instance, a single individual has filed about 120 suits in New York City's federal courts since June 2010.
If you know the regulations and specifications of the ADA guidelines, spotting a violation is almost as easy as walking up to the store; if you are disabled, then it is likely even easier to realize violations. A district court in Colorado recently found two of Abercrombie & Fitch's Hollister stores violated the ADA by using inaccessible porch-style entrances. Abercrombie argued that it complied with the regulations, that there were separate entrances with no steps, and that the porches were part of the company's branding. The court, however, held that "[t]he steps to the center entrance are a legally unacceptable piece of that branding and violate Title III of the ADA."
There are specific arguments to be made regarding whether compliance is readily achievable, but in many circumstances compliance is achievable. There are also procedural defenses to these types of suits, including whether plaintiffs have standing to bring the lawsuit. These procedural defenses have recently seen appellate litigation.
In November 2011, the United States Court of Appeals for the Fourth Circuit, which encompasses North Carolina, Maryland, Virginia, West Virginia and South Carolina, affirmed the dismissal of complaints brought by two Florida residents on the basis of standing: an individual must show that unless the property is brought into compliance, he or she will continue to face the same barriers to access.
The Court held that level of showing is absent when the individual has visited the property once, and the property is a Kentucky Fried Chicken located 775 miles from the plaintiff's house; or a Super 8 hotel an equal distance away; or a J.C. Penney, and a shopping mall, both also hundreds of miles away. In direct response to these decisions, Plaintiffs have been filing cases with more facts pled up front in an attempt to weaken these defenses.
Thus, many retailers and landlords choose not to fight the suit, but rather to settle it. Bringing the property into compliance with the ADA is the best way to avoid a future suit. It also provides a property with the positive marketing point of optimum accessibility. Other sources have reported that disabled patrons become regular customers at readily accessible businesses and that by 2030, an estimated 71.5 million people over the age of 65 will need accommodations.
Well before that, however, on March 15, 2012, the ADA's 2010 changes in accessible design will become effective for any modifications to public accommodations. Some of those changes can mean an increase in compliance costs: for example, ADA-compliant entrances jump from a minimum 50% to 60%, meaning that a business with four entrances will need three compliant entrances instead of two. Any modifications or adaptations to accommodations completed before March 15, 2012, need only comply with the 1991 standards.
Knowing when to throw up procedural defenses and how to negotiate a favorable settlement is something Troutman Sanders attorneys can assess with you. We can assist even in stopping a lawsuit before it starts: the best way to save on fees and costs. Delay or doing nothing used to be okay. Not anymore.
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