I’ve written twice recently about temporary barriers to access (“You’ve got to walk the walk” and “You’ve got to walk the walk part II). It is an issue that will probably never go away because standard point of sale marketing techniques are very likely to conflict with the ADA. The latest decision is one in the apparently endless of series of battles between Starbucks and Robert Kalani. Kalani v. Starbucks Corp., 2015 WL 846651, at *4 (N.D. Cal. Feb. 25, 2015). More
Restaurants
ADA compliance – half right is all wrong
By Richard Hunt in Accessibility Litigation Trends, ADA FHA General, ADA FHA Litigation General, Policies and Procedures FHA ADA, Restaurants, Retail, Shopping Centers Tags: ada litigation, private lawsuits, real-estate, restaurants, retail
Two realities dominate the world of ADA compliance and defense. First, the ADA is a no-fault statute: good intentions don’t matter and innocence is no defense. Second, even when barrier removal is impossible, a business still has an obligation to try to become accessible. Two recent cases show how the failure to remember this can lead to failure in the defense of a lawsuit.
Snyder v. Lady Slings the Booze, LLC, 2014 WL 7366665 (W.D. Ky 2014) presented a fairly common problem. The step up to the defendant bar (whose name along makes the case worth citing) was higher than permitted by the ADA, but could not be ramped because a ramp would protrude into a city sidewalk. The defendant did the right thing at the beginning and tried to apply for a permit, but when the permit was denied apparently decided the case was over. Barrier removal was not readily achievable, and so, the defendant thought, it was off the hook for ADA compliance. More
NIMBY tenants and the ADA
By richardhunt in Accessibility Litigation Trends, ADA FHA General, ADA FHA Litigation General, Landlord-tenant, Reasonable accommodation, Restaurants, Retail, Shopping Centers Tags: ada litigation, DOJ, Landlord-tenant, private lawsuits, real-estate, restaurants, retail
NIMBY (“not in my back yard”) litigation is common under the Fair Housing Act. An organization that serves recovering addicts or individuals with mental disabilities will try to locate in a neighborhood where deed restrictions or zoning prohibits group homes and find its efforts blocked by the city or homeowners association because the neighbors don’t want “undesirable” individuals living in the area. Commercial landlords subject to the Americans with Disabilities Act can face the same kind of pressure not to rent to tenants who serve the disabled. A landlord who succumbs to pressure from other tenants, or makes a leasing decision based on assumptions or stereotypes may find itself on the losing end of a lawsuit or a DOJ investigation.
Special Educ. Services v. Rreef Performance Partnership-I,L.P, 1995 WL 745964 (N.D. Ill. 1995) perfectly illustrates a typical situation. The plaintiff (“SES”) operated a school and vocational education facility for developmentally disabled children. At the expiration of its lease the defendant landlord refused to renew. It claimed to have legitimate business reasons, but they were all tied in one way or another to the disabilities of the children or their needs. It complained, for example, that the busses transporting the children blocked parking places, that the children generated excessive complaints about noise or playing games in the parking lot, and, perhaps most telling, that the location was not “an appropriate place” for for children. What the plaintiff did not do was make any effort to accommodate the cause of the problems, or even to address them with SES until it refused to renew the lease. The district court had little difficulty finding that SES would probably prevail in its lawsuit and granted an injunction against eviction.
The DOJ’s involvement in this kind of commercial leasing can be found in its handling of a case by Sinergia, a non-profit that operated an facility to help the mentally disabled. When a landlord refused to rent to it because other tenants complained the DOJ stepped in. The result was a consent decree that included a $75,000 payment to Sinergia and a court order compelling the landlord to comply with the ADA.
What can a landlord do when faced with the tug-of-war between concerns about other tenants and customers and the requirements of the ADA? There are four key things to remember:
- First, the landlord must understand that tenants who serve those with disabilities must be given special treatment. In the language of the statute, they must be given reasonable accommodations. For an ordinary tenant, violations of lease requirments or disruptive behavior by the tenant’s customers might well justify a refusal to renew or, if serious enough, a reason to evict. If those same concerns are the related to disabilities of the tenant’s customers the landlord cannot rely on its right to refuse to renew. Instead the landlord must engage in a conversation with the tenant in which the landlord seeks solutions; otherwise non-renewal or eviction are likely to be seen as discrimination.
- Second, the landlord must document its efforts to accommodate tenant problems related to disability. The landlord in the SES case had legitimate concerns about SES as a tenant, but it did nothing to express those concerns until it decided not to renew the lease. This kind of passive-aggressive behavior will not be accepted for tenants protected by the ADA. The landlord must document its efforts to deal with tenant problems so that it is clear when the inevitable lawsuit is filed that the landlord’s concerns were not merely a pretext for disability discrimination.
- Third, when considering a new lease the landlord needs to carefully consider whether its concerns are based on stereotypes about those with disabilities. A landlord may believe that recovering addicts are more likely engage in criminal conduct than ordinary customers, but if it refuses to lease to an addiction recovery organization it must be prepared to prove in court that this is a fact. It cannot rely on “common knowledge” about the matter.
- Finally, the landlord considering a new tenant must also consider what reasonable solutions it might find to any real problems it may face. If the tenant uses busses, as was the case in SES, the landlord must make an effort to deal constructively with the parking problem rather than merely refusing to sign a new lease or renew an old one. Again, dialogue with the prospective tenant is critical, and must be focused on finding solutions rather than using problems as an excuse not to sign a lease.
At the end of the day the ADA’s requirements for dealing with tenants who serve the disabled are not much different than the best practices in commercial leasing; that is, work with tenants to solve problems. The difference is that refusing to engage in constructive dialogue with a tenant protected by the ADA can result in a lawsuit, an investigation by the Department of Justice, and possibly a steep fine as well as money spent on lawyers. For ordinary tenants being reasonable is optional; for ADA tenants it is the law.
The DIY ADA litigation avoidance survey – is that a target on your back?
By richardhunt in Accessibility Litigation Trends, ADA FHA General, ADA FHA Litigation General, Restaurants, Retail, Shopping Centers Tags: ada litigation, ada violation, private lawsuits, private litigants
If you know your business has ADA compliance issues then hire an expert to find them all and plan for remediation. If you’re not sure, and don’t want to pay to expert, here’s a method for checking the accessibility problems most likely to lead to a lawsuit. If your business has these issues, your best way to avoid litigation is start fixing them now. You’ll need a good 16 ft. tape measure, a 2 foot level, a yardstick, and a short piece of 1″ dowl. Remember as you do this survey that a very large majority of ADA lawsuits are brought by plaintiffs confined to a wheelchair, so wheelchair accessibility standards are the key to avoiding most lawsuits. No matter what the actual measurements, if there is something in your business that isn’t readily accessible to a person in a wheelchair then you have a lawsuit waiting to happen.
We’ll start with parking, which is where the plaintiffs usually start. If your accessible parking looks like the picture below on the left then you’ve probably got a barrier to access that must be fixed. The picture next to it explains why. A ramp that projects out from the sidewalk will almost never satisfy the ADA accessible design standards.
Any accessible parking ramp should look like one of the pictures below.
(Thanks to Michael Allen of Code Able Accessibility for the photo on the right).
Next, measure the largest accessible space. Current standards require at least one van accessible parking space, which requires a flat area at least sixteen feet wide and as deep as local codes require, usually 19 to 20 feet. Flat means flat. Use the level to make sure the space doesn’t have any significant slope. How many accessible spaces you need depends on the total number of parking spaces, but if you don’t have one van accessible space you are a litigation target. Here’s a picture from the DOJ showing a properly marked accessible parking space. The picture is misleading in one way. The marked access aisle only has to be 60″ wide if the van parking space next to it is 11 feet wide. The total is 16 feet wide no matter what.
There are requirements for the slope of the ramp and the wings next to it. You can make sure the ramp slope meets the ADA requirement by putting the level on the ramp with the 0″ end at the top. Lift the level and slide the dowl in at the 12″ mark and then roll it up or down until the level is level. If the dowl touches the level at the 12″ or higher mark the slope meets the 1/12 slope requirement.
Next, walk from the accessible space to the front door of your business. Did you pass any other parking spaces? For a stand alone business the accessible space should be the closest space to the door unless there are physical reasons it cannot be. In strip shopping center there may be more leeway, but if there is a lot of closer parking you may have a problem.
While you walked did you see any bumps or gaps of more than 1/4″? If so the route may not be “accessible.” Any steps? Then the route is definitely not accessible and therefore doesn’t comply with the ADA. Finally, were there any discernable slopes? if so, check them the same way you checked to parking access slope. My suggestion would be that even if the slope passes this test you talk to a consultant because the slope and cross slope requirements are complex enough to warrant expert review.
You need to check two things at your front door. First, the threshold should be no more than 1/4″ high, or 1/2″ high with a beveled edge. Second, the width of the door itself should be 36″ or more. The actual ADA requirement is based on clear space when the door is open, but as a general rule a hinged 36″ door that opens at least 90 degrees will have the required clearance. A 35″ door is cutting it very close, and a 34″ door will not have the required clearance.
Restrooms are a very common source of ADA complaints, and although the restroom rules are very complicated you can make a few measurements to determine if you have the most common kinds of problems. First, check the door. Does it have a knob? Then it is not ADA compliant. Lever door handles are required in almost all cases. Next, check the size of the restroom. If the door swings out the restroom must be at least 5′ x 7′ to comply with the current standards. If the door swings in the minimum is 7′ x 6′ 6.” No matter how the restroom is laid out if it doesn’t meet these size minimums it probably violates the ADA.
Of course the placement of the toilet and lavatory matters as well. While clever layouts that save space are possible, the easiest way to tell if there is an issue with the toilet is to measure sixty inches out from behind the toilet and 60 inches out from the wall next to the toilet. If there is anything other than the toilet and grab bars in that 60″ x 60″ square then the restroom probably does not comply with the current ADA standards.
Speaking of grab bars, there must be one behind and one on the wall closest to the toilet. Location and dimensions are important, but if you don’t have one of each then there is certainly a problem.
Finally, for a quick survey, make sure there is one lavatory open at the bottom so that a wheelchair can roll up to it. Any pipes need to be covered, and the sink height can be no more than 34 inches. The location of soap dispensers, faucet levers (no knobs) and towel dispensers are all important as well, but these aren’t the major causes of litigation.
The final check on this quick survey of the most common problems will be the width of aisles in the store or business and the height of checkout counters. Use the yard stick to make sure there is at least 36″ wide path to everywhere in the business a customer might ordinarily go. Remember the 36″ width has to be a floor level as well as above. If there are places a consumer can’t reach by a 36″ wide route then there is almost certainly an ADA problem.
The checkout aisle requirements are somewhat complicated, but the usual violations are not hard to find. A typical grocery checkout — the kind with a moving belt — cannot be more than 38″ high with a 2″ lip. A checkout counter cannot be more than 36″ high and must have a space at least 36″ long and deep in front of it. If the counters are higher than this, or cannot be easily approached by a person in a wheelchair, there is probably an ADA violation.
Remember that this DIY survey can’t tell you if your business is fully ADA compliant — it only covers the most common ADA violations that lead to litigation. The safest course for any business is to hire a consultant and get a complete survey. This survey also assumes the worst in most cases. If you are already in a lawsuit there may be good arguments for an exception to the general ADA standards. But if you aren’t in a lawsuit and don’t want to be, this survey will tell you whether you’ve go a target painted on your back with respect to ADA litigation.
Litigants, lawyers and tape measures – DIY ADA compliance
By richardhunt in Accessibility Litigation Trends, ADA FHA General, Restaurants, Retail Tags: ada litigation, ada violation, DIY, Do It Yourself, private lawsuits
A recent decision from the Southern District of New York, Gropper v. David Ellis Real Estate L.P. , 2014 WL 904483 (S.D. N.Y. March 4, 2014) demonstrates some of the unique features of ADA litigation, but also points to a practical solution for business owners who want to avoid a lawsuit.
The issue before the court was whether the plaintiff’s lawyer should produce his case files and submit to a deposition. The defendant’s argument for a deposition was simple. Many of the allegations concerning non-compliance in the defendant restaurant were not based on what the plaintiff had observed, but on what the lawyer had observed. For example, some toilets were not on an accessible floor, but the lawyer had determined they did not meet the ADA standards. According to the defendant this made the lawyer a witness who had to produce his files and submit to a deposition.
The court disagreed. It refused to allow the deposition and document production, but also refused to award the defendant any costs or attorneys fees. The court’s explanation for refusing the discovery was pragmatic:
there is no need whatsoever to depose Mr. Parker. The information he possesses concerning the physical layout and various features of the Blue Water Grill is readily available to the defendants, who own the premises and operate the restaurant.
Business owners should see in this a hopeful message about ADA compliance. It didn’t take an expensive expert to determine that the toilets were not accessible; the plaintiff’s lawyer could do it himself. It is certainly true that many aspects of ADA compliance are complex, and both the current 2010 Standards and the earlier ADAAG guidelines are written in language only a bureaucrat could love, but the basic rules concerning public toilets, door widths, slopes and the like can be applied by anyone with a tape measure and a level. The ADA violations most likely to give rise to litigation can be discovered by a business owner without hiring an expert, as I’ll explain in more detail in my next blog. If a lawyer can find it, then an owner can find and fix it first.
The court’s refusal to award the plaintiff fees is also interesting because it shows the ambivalent attitude of the courts toward professional plaintiffs and their counsel. Ordinarily lawyers are not deposed and their files are not subject to subpoena. Demanding the deposition of opposing counsel is so often improper that the demand frequently leads to sanctions. In this case the unusual demand and some very unprofessional allegations against the plaintiff’s attorney lead the court to observe that there was a pattern of behavior suggesting the defendants were “vexatiously” multiplying the litigation, which would deserve sanctions. The court refused those sanctions because the plaintiff’s counsel had in fact participated in the investigation of facts, which is not an appropriate role for the trial lawyer. There may be some hope that as court’s begin to fully appreciate the nature of the ADA litigation industry they will become more reluctant to give the benefit of the doubt to plaintiffs who are part of a litigation production team in which most of the profit goes to attorneys.
Still, while it may feel good to attack plaintiff’s counsel in these cases, the important message for business owners is that you can avoid being a litigation target by simply coming into compliance with the ADA, and that even if the owner doesn’t have the money to hire an expert to conduct a full ADA survey, the owner can himself do a lot to discovery and fix non-compliant features of the business.