[Originally published in The Wendel Report: Restaurants and Wineries, Winter 2009.]
There is a small step from the sidewalk to the front door of your restaurant. The pressure it takes to open the front door to your business is greater than the law allows. The door to enter your restrooms has "standard" doorknobs that require twisting to open them. The pipes underneath the sinks in your restrooms are exposed and not wrapped for protection. You never gave these much (or any) thought, nor did you realize they constituted "architectural barriers" that interfered with persons with disabilities patronizing your restaurant.
California law requires new premises to provide full and equal access to persons with disabilities. Existing business premises also must be modified to provide equal access if it is" readily achievable" to do so. In June 2009, the California Supreme Court ruled that money damages may be awarded against restaurants, and other businesses open to the public, even for unintentional failures to provide equal access to persons with disabilities.
Kenneth Munson, a physically disabled person who uses a wheelchair, sued a Del Taco restaurant in San Bernardino, California after he encountered architectural barriers that denied him access to the parking area and restrooms. After the lawsuit was filed, Del Taco made the needed renovations at a cost of $66,000.
There was no dispute that certain access requirements under the federal Americans with Disabilities Act("ADA") were violated. For example, the doorway to the restroom was too narrow, and widening the doorway to allow for wheelchair access was "readily achievable." While the ADA does not allow individuals to receive money damages if its provisions are violated, Munson also sought relief under California's Unruh Civil Rights Act, which provides companion protections in state law for persons with disabilities.
The Unruh Act states that all persons, no matter what their disability (among other protected categories such as sex and race) are entitled to "full and equal accommodations, advantages, facilities, privileges or services in all business establishments." But unlike the ADA, the Unruh Act awards money damages" for each and every offense...up to a maximum of three times the amount of actual damage but in no case less than $4,000."
The dispute in Munson involved whether he was entitled to receive money damages if Del Taco did not intend to violate the ADA or deny him full access to its restaurant.
Although the California Supreme Court had in the past ruled it was necessary to prove intentional discrimination to establish a violation of the Unruh Act, the State Legislature subsequently added a section to the Act that provided a violation of the ADA also constituted a violation of the Unruh Act. Intentional conduct is not needed to prove a violation of the ADA. The Supreme Court concluded in Munson that it was no longer necessary to prove intentional discrimination to obtain relief, including money damages, under the Unruh Act.
What Does It Mean to Your Business?
Most owners of restaurants know that their businesses must be accessible to persons with disabilities and, indeed, most want disabled persons to patronize their business. At the same time, many decide not to investigate whether their restaurant complies with legal accessibility requirements because they fear the cost to make their premises fully accessible will be too high. So, if no one has complained yet, "Why spend the money now?" The California Supreme Court has answered that question. Ignorance of the law and lack of intent to discriminate against persons with disabilities will not insulate you from financial liability. So, what's a business to do?
Take a Critical Look at Your Premises
All restaurants, by virtue of inviting members of the public onto their premises, are required to comply with accessibility laws. Even if needed modifications are not "easily accomplishable and are able to be carried out without much difficulty or expense," "alternative methods" of access usually must be provided. For example, if an access ramp cannot be constructed at the front of your restaurant because of lack of usable space, an accessible buzzer might be required to alert employees to unfold a portable ramp over a group of steps to enable a wheelchair to enter your restaurant. In other words, simply concluding that constructing an access ramp "can't be done or done easily" may not allow you to do nothing. Conduct an audit of your premises to determine if your restaurant is fully accessible and in compliance with accessibility regulations. A simple first step might be to ask a disabled friend or customer to visit the restaurant and find out if he or she can access and use the restaurant's public areas and services. Does your parking area have marked spaces dedicated for persons with disabilities with space for wheelchair access? Do proper disability parking and access signs exist at the premises and in parking areas? Is there a smooth transition from the parking lot to the sidewalk and from the sidewalk or entry area through the front door to your restaurant? Is there an adequate flat area at the front door for a person in a wheelchair to comfortably open your front door? Simply stated, can a wheelchair-bound person easily get in and out of your restaurant?
Once inside your restaurant, does the disabled person have a clear path of travel throughout? There must be equal access to your tables and the bar, as well as a clear path between the tables and the restrooms. Moreover, a wheelchairbound person must be able to access and use the restrooms.
There are a myriad of issues that require consideration. Free information and guidance is available from a number of sources, such as the United States Department of Justice Access Hotline at (202) 514-0301. ADA accessibility guidelines are also available online at www.accessboard.gov or by calling a related telephone hotline at (800) 872-2253.
Consider asking an architect experienced in disabled access requirements or other qualified ADA consultant to do a "walk through" of your restaurant to identify areas that may not comply with ADA or building code regulations. This can often be done without substantial cost. Remember, ignorance of the law will not protect you.
Protection against Abusive Lawsuits
In 2008, the California Legislature attempted to limit abusive disability access lawsuits by passing the Construction-Related Accessibility Standards Compliance Act (also called SB1608). While SB1608 does not protect business owners and tenants who fail to comply with accessibility standards, it does provide a procedure to stop lawsuits temporarily pending a court hearing if a Certified Access Specialist (CASp) has previously inspected a business and determined that all applicable construction-related accessibility standards have been met. Businesses can now hire a CASp to inspect their premises and certify in a written report that the premises comply with accessibility standards. The CASp will issue a certificate that can be posted at your business stating the premises has been inspected and complies with accessibility standards. Posted certificates will likely discourage frivolous lawsuits. Additionally, under SB1608, Unruh Act damages are permitted only if a disabled individual personally encounters a violation that denies access or was deterred from accessing a business on a particular occasion. Simply identifying a group of technical violations that exist, but which did not in fact prevent a disabled person on a particular occasion from using the restroom or being served a meal, for example, will no longer justify an award of damages. Nevertheless, this modest change in the law will not excuse a failure to provide "full and equal access."
Take Action Now
Although it has been more than 15 years since the enactment of the ADA, a great many restaurants still do not comply with accessibility requirements. Restaurants that make no effort to comply with disability accessibility standards are more likely to become targets of Unruh Act lawsuits. Minimize your exposure by taking simple, cost-effective measures, such as posting ADA approved signs alerting disabled individuals that access is available or alternative means for full access exist. Confirm that door hardware is functional and pressure requirements are appropriate for persons with disabilities. Adjust the location and height of restaurant tables and counters to accommodate wheelchairs.
These changes will both discourage access disability lawsuits and encourage persons with disabilities to patronize your restaurant.