Last year marked the 25th anniversary of the Americans with Disabilities Act. While ADA standards continue to adapt to the times – particularly in the digital space – rules around public accommodations and commercial facilities have created legal headaches for restaurateurs as private lawsuits continue to rise.
At the 2015 SPECS conference, ADA legal consultant Joan Stein shared that there was a 63 percent spike in the number of public accommodation ADA lawsuits from 2014 to 2015. While some of these lawsuits are legitimate, there is a growing concern that frivolous “drive-by” lawsuits have taken center stage.
While lawmakers have begun to explore legislation to curb the tide of lawsuits, political consensus is still in the works. In the meantime, retailers are as responsible as ever for being proactive in their due diligence programs. Here are three key considerations to keep in mind.
The True Cost of Non-Compliance
The costs of non-compliance with ADA standards can range from court fees, to out-of-court settlements, to Department of Justice-imposed penalties. About 40 percent of ADA suits are filed in California, where the Unruh Act provides automatic entitlements and attorney’s fees to discrimination complainants, even without showing actual injury.
According to Joan Stein, fines for DOJ-levied penalties begin at $75,000 for the first violation and $155,000 for each subsequent one. When considering remediation costs, the average cost to comply with ADA barrier removal standards is over $82,000 for a typical restaurant.
As ADA standards evolve with some regularity, the cost of annually reviewing due diligence and ear-marking money for needed improvements will usually far outweigh the stacking effect of penalties and remediation costs. Unfortunately, many organizations get complacent with “the way it’s always been done” when it really only takes one lawsuit to open a larger can of warms across an entire business.
Protective Legislation is Still Evolving
Advocacy groups and lawmakers have started to explore ways to curb the influx of frivolous lawsuits. California Governor Jerry Brown recently signed Senate Bill 269 into effect. This bill allows small businesses (with fewer than 50 employees) to hire a Certified Access Specialist to identify ADA violations. The businesses would then be given 120 days to address them.
The House Judiciary Committee’s Subcommittee on Constitution and Civil Justice also recently held a hearing over the ACCESS (ADA Compliance for Customer Entry to Stores and Services) Act. This would require aggrieved parties to notify businesses of ADA violations in writing. The business would then have 60 days to provide a detailed description of intended improvements, and 120 additional days to fix any problems.
Though most proposed legislation is extending the window for businesses to make improvements in good faith, the unpredictable nature of when and where suits can emerge is exacerbated for multi-unit or national operators.
Driving Compliance on the Restaurant’s Terms
Perhaps the most effective way restauranteurs and retailers can stay ahead of the tide of ADA lawsuits is to be thorough and proactive in their due diligence. Site surveys are critically important for any new site or remodel project and can identify potential issues during the design adaptation phase, well before construction begins. The earlier problems are identified, the more they can be addressed in a time-effective and cost-effective manner.
As laws designed to quell the epidemic of private lawsuits continue to be met with debate and conversation, commercial businesses are best served making efforts to ensure compliance on their own terms. Where extended “grace periods” to fix issues may especially help small businesses, brands with multiple locations can quickly find themselves behind the eight ball if multiple lawsuits emerge at once.
For those restaurant chains with a large store footprint, a nationally-licensed partner can provide the required knowledge of both national and local jurisdictional requirements. If problems are identified, they can coordinate an appropriate path forward though leveraging existing engineering, expediting, or construction relationships in local markets, as appropriate.
ADA compliance and remediation is a necessary, time-consuming and expensive part of any facility development plan. By concertedly taking the appropriate measures early, though, the outlay can be made significantly less severe. In the event that a violation goes to trial, demonstrating a commitment to keep up to date on the latest compliance issues can only help in the eyes of the judicial system.