ADA 'Drive-by' Lawsuits are Targeting Restaurants

An increasing number of 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 City, Los Angeles, and other metropolitan areas have been hotbeds for these cases. It is not unusual for a single plaintiff to file 200 to 300 ADA lawsuits alone in a relatively short period of time. Fortunately, with an understanding of the anatomy of Title III cases, businesses can take proactive measures to deter and defeat these drive-by claims.

It Starts With A Demand Letter
A Title III claim usually starts with a demand letter. The claimant may never have even visited your establishment. A disabled individual, or just an attorney, can simply drive by 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, narrow doorframe, windscreen that does not provide a sufficient turning radius for wheel chairs, improperly striped parking spaces, or dozens of other possibilities. There are many potential technical violations easily visible from the street without a plaintiff ever visiting your premises.

At this stage, many Title III litigants will simply attempt a quick settlement for a few thousand dollars, occasionally seeking some modifications to the property. Even though a technical violation may exist, it may not be appropriate or feasible to settle the demand. 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.” Determining what is readily achievable involves an analysis of multiple factors, including the overall financial resources of the owner/operator of the public accommodation.

The Next Step Is A Lawsuit
If these drive-by litigants cannot obtain a quick payday, the next step usually 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 provide litigants with a sum of attorneys’ fees.

Whether or not an unlawful physical barrier is determined to exist is governed by Title III’s interpretive regulations. These rules set forth a litany of specific architectural guidelines for everything on your property, including parking lots, entrances, elevators, pathways, seating, bathrooms, and more. For example, if a bathroom does not satisfy the minimum width requirements, a technical violation may well exist and a court may order you to widen your bathroom.

It may come as a shock, but even in cases where plaintiffs have never even entered your business, they still may be able to allege technical violations that exist at your premises. After the plaintiff files a complaint, the lawyer may seek to have their own ADA compliance expert conduct an inspection of your 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. One of the most commonly asserted exterior violations is the lack of an accessible path of travel to the entrance. Plaintiffs often claim that there is a lack of or an improperly constructed ramp or curb cut along the path of travel from the designated accessible parking spaces to your entrance, or a path of travel that exceeds the permitted slope.

Another common claim is an allegation regarding improper hardware on the entrance doors (such that would require twisting or grasping) or that excessive pressure is needed to open the 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:

• service counters and bars being too high;
• the lack of accessible tables;
• no accessible path of travel through the restaurant or bar;
• the lack of accessible restrooms including, but not limited to, the lack of grab bars, restroom fixtures being mounted too high, or restroom stalls being too small; and
• the lack of clear floor space to turn a wheelchair around.

Prevention Is Possible
In light of the growing number of Title III lawsuits, many hospitality businesses ask how they can 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. If any are identified, make sure to prepare and implement an appropriate remediation plan. Remember that you should pay attention not only to the Title III public accommodation guidelines, but also to any applicable state, county, or city guidelines.  

In addition, you should review, and if necessary rewrite, your personnel policies to direct your employees to provide necessary assistance to patrons with disabilities.

In the event your facility is sued, you should 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.

A version of this article originally appeared in Restaurant Hospitality magazine. For more information, contact the authors at SMiller@fisherphillips.com (312.580.7817) or SFanning@fisherphillips.com (312.346.8061).