Business property owners and tenants often misunderstand their legal obligation to make their premises accessible to individuals with disabilities. Many business operators mistakenly believe that if they have owned or leased their premises since before accessibility laws were enacted or if they have not made substantial physical changes to their premises during that time then they have no obligation to make their businesses accessible to individuals with disabilities. In other words, they believe they are "grandfathered in," making them exempt from laws that now require businesses that are open to the public to be fully accessible to individuals with disabilities. The reality is that most business owners welcome disabled customers and offer assistance if it is needed. Yet, both federal and state laws require businesses to do significantly more.
Although the United States Congress enacted the Americans With Disabilities Act ("ADA") more than 15 years ago with the goal of remedying discrimination against individuals with disabilities, a substantial number of business property owners and operators remain largely ignorant of their legal obligations under the ADA. Most seem to understand that new commercial buildings must have accessible doorways, ramps and restrooms so that individuals with disabilities can access them fully, yet the ADA also requires existing public businesses to remove structural barriers that prevent equal access by all "where such removal is readily achievable." Even where removal of a barrier is not readily achievable, businesses must provide access "through alternative methods if such methods are readily achievable." Aggrieved individuals may bring private lawsuits to enforce the ADA (even if local building officials have approved the premises) and, if successful, obtain injunctive relief to require changes. In addition, they may be awarded their attorney's fees.
Similarly, California has adopted the Unruh Civil Rights Act, which provides that any violation of the ADA shall constitute a violation of state law. Unlike the ADA, however, California law 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, and any attorney's fees that may be determined by the court."
As you might imagine, ADA access lawsuits are now commonplace. First, as already stated, many business operators remain largely ignorant of how accessibility laws and regulations affect them. Second, money motivates people. In California (surprise!), some members of the disabled community, as well as the legal community, have seized onto these laws and search out business properties and operators who violate access laws or regulations.
In the past, this author has written about one of the most prolific disabled litigants, Jarek Molski (see, Notorious Disabled Litigant Entitled to Pursue Access Lawsuits to make the point that the financial motivation of a disabled plaintiff is irrelevant. When businesses provide goods and services to the public (e.g., hotels, restaurants, retail stores, etc.), those services and facilities must comply with accessibility laws and regulations. While certain vexatious disabled litigants engage in what courts have described as "a scheme of systematic extortions designed to harass and intimidate business owners into agreeing to cash settlements," the only thing that really matters is whether the business property provides proper disabled access. See Molski, et al. v. Manderin Touch Restaurant (CD Cal. 2004) 347 F.Supp.2d 860, 864.
On March 23, 2007, the U.S. Court of Appeals for the Ninth Circuit, whose jurisdiction includes the State of California, ruled once again in favor of Mr. Molski to the great disappointment of a business in Woodland Hills, California known as Cable's Restaurant. Jarek Molski, et al. v. M.J. Cable, Inc., etc. (2007 DJDAR 3911). Apparently, Cable's Restaurant decided "it was not going to take it anymore" and aggressively defended Molski's claim that their public restrooms were inaccessible to persons with disabilities. The only problem was that the restrooms were not in compliance with accessibility regulations.
Molski, a paraplegic who has been confined to a wheelchair as a result of a motorcycle accident that paralyzed him, has made a business out of suing those who fail to comply with ADA regulations. As the Ninth Circuit describes it, "Molski has brought hundreds of lawsuits against inaccessible public accom-odations throughout California. Molski considered himself a civil rights activist who uses litigation to force compliance with the ADA; California businesses and a federal district court consider him a vexatious litigant who exploits the ADA and its state law counterpart for pecuniary gain." At 3912.
Cable's Restaurant did not deny that it failed to identify and remove architectural barriers. Nor did it contend it could not afford to make required renovations. In fact, Cable's Restaurant did not call any witnesses in its defense at trial. Instead, its lawyers simply cross-examined Molski and his witnesses, including Cable's own vice-president who had been called by Molski to testify. The restaurant's trial strategy, apparently, was to discredit Molski by exposing his ulterior motive for bringing these lawsuits.
Here is what was learned on cross-examination:
- Molski testified that he did not complain to any of Cable's employees about his access problems during or after his visit to the restaurant.
- He had filed 374 similar ADA lawsuits as of October 2004.
- His San Francisco attorney had filed 232 of those lawsuits and even more lawsuits had been filed since 2004.
- He and his attorney averaged $4,000 for each case they settled and Molski did not actually pay any attorney's fees to his lawyer.
Molski further testified that he had no employment besides prosecuting ADA lawsuits, despite his possession of a law degree, and he projected his annual income from settlements was $800,000! Additionally, Molski's ADA consultant testified he earned 95% of his income performing investigations for Molski's lawyer. Did this testimony make a difference? It did to the jury.
After hearing Molski testify, the jury rendered a verdict against Molski. The jury apparently bought Cable's Restaurant's legal argument that Molski was not protected as an "individual with a disability" under the ADA, but instead was little more than a person operating a litigation business. After the jury's verdict in favor of Cable's Restaurant, Molski requested a new trial, but the trial judge denied the motion. Molski then appealed to the Ninth Circuit Court of Appeals.
The Ninth Circuit took little time to conclude that both the jury and the trial judge got it wrong. Molski and his ADA consultant provided undisputed testimony that identified a list of architectural barriers, many minor but some not, including the absence of accessibility signage on the bathroom door, excessive door pressure that made it difficult for a person in a wheelchair to open the bathroom door. The bathroom stalls were neither wide enough nor long enough to accommodate a wheelchair. Side and rear grab bars in the stalls were missing. The required looped handles for opening or closing the stall door were also not present. The towel seat cover dispenser and paper towel dispenser were too high. The bathroom sinks did not have levered hardware so persons with disabilities could turn the faucet on and off without difficulty. There was no insulation on the pipes underneath the sinks to protect persons in wheelchairs from being scalded by hot water pipes as they pull themselves close to the sink to wash their hands.
Undoubtedly, Cable's Restaurant was angry at Molski for attempting to "extort money" through his ADA lawsuit, and the jury was sympathetic to Cable's plight. Unfortunately, Cable's Restaurant's lawyer also got caught up in the emotion and dismissed the fact that Cable's restrooms simply failed to comply with accessibility laws and regulations.
The Ninth Circuit rejected Cable's Restaurant's legal argument that Molski was not an "individual" (because he acted like a business enterprise) under the ADA as "unreasonable and legally flawed." At 3915. The Court pointed out that the ADA protects "individuals" who are disabled and Molski, a paraplegic, clearly fell within that definition. The Ninth Circuit reversed the trial court's decision and sent the case back for a new trial.
What did Cable's Restaurant achieve by getting mad at this notorious ADA litigant? A large legal bill from his lawyer that probably dwarfed the cost of making the needed renovations, plus an expected injunction requiring it to make the required alterations to the restrooms anyway! To put salt on its wounds, Cable's Restaurant almost certainly will have to pay Molski's attorney's fees (although he never actually pays his attorney), along with a monetary award for being denied equal access to the restaurant's restrooms.
Don't get mad, get smart! All business property owners and operators who invite members of the public onto their premises need to conduct an audit of their premises to determine if they are in compliance with accessibility regulations. A simple first step might be to ask a disabled friend or customer to visit the premises and find out if he or she can, in fact, access and use all of the business' public areas and services. Additionally, an architect with expertise in disabled access regulations could be asked to conduct a brief inspection to identify potential barriers to access and, often times, suggest easy and economical ways to comply with the law. Business owners can also contact the U.S. Access Board for guidance and information at (800) 872-2253 or at www.access-board.gov.
While in some circumstances the cost of making business premises fully accessible to persons with disabilities can be substantial, many changes can be made with minimal expense. In the Cable's Restaurant trial, Molski's contractor testified that while both bathrooms could be remodeled and comply with the law for a total of $8,600, there were incremental steps that could also be taken for much less money. For example, Molski's contractor testified that lowering the toilet seat cover dispenser would cost approximately $20 and take about 15 minutes to do. Insulating the pipes underneath the sink would cost around $20. Other repairs were as inexpensive as $30. There are a great many inexpensive steps that businesses can take to comply with ADA regulations and help avoid costly lawsuits.
Remember, if renovations are very expensive then, almost by definition, they are not "readily achievable" (i.e., "easily accomplishable and able to be carried out without much difficulty or expense").
Business owners who have experienced costly ADA access lawsuits have suggested that the laws should be changed to require disable persons to notify the offending business prior to filing a formal lawsuit, thereby offering it an opportunity to make necessary renovations before a lawsuit can be filed. This is a worthwhile idea, yet, it does not describe the current state of the law. Speak with your state legislator or Congressperson to change the current law. In the meanwhile, "Don't Get Mad, Get Smart."