Accommodation issues may spawn litigation trend

While this legislation is not new, Title III litigation could pose a new threat to Midwestern companies. For the past decade, these lawsuits have proliferated on the coasts; now, Title III litigation is creeping inland, with actions pending in both Arizona and Oklahoma.

Places of public accommodation

A public accommodation is a private entity, not a church or private club, that owns, leases (or leases to), or operates a place of public accommodation, which is defined as a facility whose operation affects commerce. In other words, it’s any facility that is open to the public.

Accessibility requirements

A facility is accessible if it: does not impose eligibility requirements that screen out individuals with disabilities; makes reasonable modification to policies and procedures if necessary to accommodate individuals with disabilities; provides reasonable auxiliary aids or services; and removes architectural and communication barriers that are structural in nature.

Complying with the first three requirements rarely involves much expense. It is the fourth requirement that poses a significant problem.

When it passed the ADA, Congress delegated the development of the physical accessibility requirements to the regulatory process. The Access Board – its official name is the Architectural and Transportation Barriers Compliance Board – was required to adopt regulations establishing minimum accessibility criteria. The result was the Americans with Disabilities Act Accessibility Guidelines, 90 pages of fine print establishing requirements for everything from the slope of sidewalks to the location and height of toilets. (Note: A revised ADAAG was published in 2004. With more than 200 pages, it extends coverage to new areas such as golf courses, swimming pools and fishing piers. It won’t be applicable, though, until it is formally adopted by the Department of Justice, which may not occur for several years.)

Congress delegated enforcement to the Department of Justice, which was required to adopt standards that were not inconsistent with board’s criteria. As a result, the Department adopted the ADAAG as its ADA Standards for Accessible Design. Every place of public accommodation must comply, to some extent, with the Standards for Accessible Design.

For existing facilities, those constructed before Jan. 26, 1992, the Standards’ requirements need be met only if the barrier removal is readily achievable, which means “easily accomplishable and able to be carried out without much difficulty or expense.” The Department has provided examples of barrier removal, including ramp installation, curb cuts, furniture rearranging, shelving and display racks, widening doors and rearranging restroom partitions.

New construction, which is any structure built or altered after 1992, however, must meet every requirement, subject only to “conventional building industry tolerances for field conditions.”

What facilities are at risk?

While the requirement to make readily achievable modifications to existing facilities applies only to places of public accommodation, the requirement that new construction, which includes expansions and renovations, comply with Standards for Accessible Design applies to any commercial facility, which is defined as any facility whose operations will affect commerce and any facility that is intended for nonresidential use by a private party. In other words, virtually any business that plans a new facility, expansion or renovation must be aware of the SAD. Failure to comply with even the smallest detail invites litigation.

While it might seem safe to rely on architects and construction managers, these professionals are often not as well versed in the SAD as might be expected. Moreover, standard contracts often fail to allocate responsibility for compliance with the ADA. The ultimate liability will fall on the owner.

Litigation: The good, bad and ugly

No one can dispute the laudable goal of the ADA. Unfortunately, some individuals and organizations have turned this legislation into a livelihood. Title III litigation hit the coasts the day the ADA became effective. One individual filed more than 10 lawsuits in Washington, D.C., on Jan. 26, 1992. An individual in Florida filed so many suits on his own behalf and the behalf of various organizations that the local newspaper dubbed him “Hell on Wheels.” A number of Southern California lawyers specialize exclusively in Title III litigation.

The litigation inundation is slowly moving inland. An individual in Phoenix and his New Jersey lawyer have filed more than 30 suits against local businesses. Recently, a Florida law firm filed more than 20 suits in Oklahoma. The Heartland cannot be far behind.

The good in Title III litigation is that plaintiffs cannot recover compensatory damages. One need not fear large awards of monetary damages for emotional suffering. Relief is limited to an injunction requiring modifications to bring the facility into compliance.

The bad is that plaintiffs can recover attorney’s fees and costs, which often include fees for inspection of the facility. Individuals, posing as customers, visit facilities solely to compile a list of ADA violations. Sometimes they offer, for a fee, to provide guidance to bring the facility into compliance, filing suit only if the offer is refused. On others, they file suit without notice, generally offering to settle for an agreement to make modifications plus thousands of dollars in attorney and expert fees.

The ugly is that the owner never wins. The ADAAG is so extensive and so detailed, the concept of readily achievable so broad, that total compliance is simply impossible. Some violation inevitably exists. And it takes just one violation for the plaintiff to prevail.

To avoid costly litigation, business owners must be aware of their obligations under Title III. Doing what is readily achievable now will save thousands of dollars in the future.

Tina Fowler and Robert Harrop practice law with Lathrop & Gage LC. Fowler works in the firm’s Springfield office, and Harrop is in Kansas City. Both concentrate their practices on labor and employment issues.