Department-of-JusticeThanks blog is thanks to Ken Besserman, General Counsel of the Texas Restaurant Association, who sent me this link to an article about an announced Department of Justice investigation of restaurants in Houston, Texas. Twenty-five popular restaurants will be investigated for ADA violations over the next several months.

This investigation is worthy of note for several reasons. First, none of the restaurants is the subject of any specific complaint. Instead the investigation was timed to coincide with a symposium of civil rights advocacy groups. This is a good reminder for all businesses that the power of the Department of Justice to investigate possible ADA violations does not require that DOJ wait for a specific complaint. A business thinking that it won’t be targeted because it seems to have no disabled customers needs to know that DOJ doesn’t need a disabled complaining party in order to enforce the ADA.

A related point concerns the targets. Unlike private plaintiffs, who may sue whatever business is convenient, DOJ tries to maximize the impact of its work by choosing those businesses most likely to be patronized by disabled individuals. The more successful you are, the more careful you need to be.

Another noteworthy aspect of the investigation is that DOJ is starting with a survey asking the restaurants to self report on ADA compliance. This means that every target restaurant has a chance to fix any problems that may exist before a DOJ inspector arrives or a DOJ complaint is filed. In fact, U.S. Attorney Kenneth Magidson is quoted as saying that they want to “ensure that noncompliant restaurants make the necessary changes rather than face litigation.” Many private plaintiffs sue first in order to preserve a claim for attorneys fees. While the ADA has provisions intended to punish those who don’t comply, the first goal of Congress was to create compliance, not lawsuits. The private enforcement mechanism was poorly designed and has failed to achieve this goal, but public enforcement still concentrates on compliance instead of punishment.

For restaurants who are on the DOJ list, or who think they might be, this announcement should be seen as a golden opportunity to spend money on ADA compliance instead of on attorneys. For other businesses of all kinds it is a reminder that most of the publicity concerning ADA efforts by the DOJ comes with respect to claims against cities and towns, private businesses are also on the radar of both DOJ and private litigants. Now is the time to make sure your business is physically accessible and has the proper policies for service dogs and other types of accommodation requests.