Introduction
California's disability access laws have been in place
since 1978; the federal Americans with Disabilities Act (ADA) (42
USC §§12101—12213) was enacted in 1992. When these laws
were passed, lawmakers assured the public that they were intended
to apply only to new construction and major remodeling projects.
Today, however, many California businesses are being sued over allegedly
imperfect parking lot striping, counter height, toilet grab bars,
and even the precise placement of signs with the familiar blue wheelchair.
Owners and operators of older buildings are bewildered that their
contractors' full compliance with then-current building codes is
no defense to a disability access suit. Defendants in such actions,
although usually offered a chance for a quick monetary settlement
shortly after being served with a complaint, are increasingly calling
the access laws a mere license for extortion. One Florida court
recently referred to ADA suits as “shotgun litigation” ( Brother
v. Tiger Partner LLC (MD Flay 2004) 331 F Supp 2d 1368, 1375);
a Southern California plaintiff was declared a “vexatious litigant”
in an order that characterized his “claims of being the innocent
victim of hundreds of physical and emotional injuries over [a four-year
period as] def[yang] belief and common sense.” Molski v. Mandarin
Touch Restaurant (CD Cal 2004) 347 F Supp 2d 860, 867. Governor
Arnold Schwarzenegger, on September 3, 2004, in vetoing a bill (AB
1707) that would have expanded one of the laws that has fueled the
litigation explosion in California, called the issue “the next lawsuit
abuse problem in California that is likely to drive businesses out
of the state.” The governor's veto speech called for legislation
to allow unintentional access violations to be corrected without
penalty. Unfortunately, legislative proposals requiring pre-litigation
notice and an opportunity to make repairs as prerequisite to suit
have been repeatedly defeated. (See AB 1040 (2001), AB 209 (2003),
SB 69 (2003), AB 2594 (2004); SB 855 (2005).) Will new federal access
guidelines stem the tide? Will a private business that qualifies
as a “public accommodation” have a safe harbor?
Background
Title III of the ADA was signed into law on July 26, 1990.
A year later, the Department of Justice published implementing regulations,
later codified as 28 CFR Pt 36. The implementing regulations are
called “ADA Access Guidelines” or just “ADAAG.” The guidelines were
overly specific in some respects (requiring, e.g., that accessible
toilets had to be hung precisely 18 inches above the floor) and
somewhat vague in other respects (not starting whether an accessible
parking space must be measured from the center or the edge of its
four-inch paint stripe). More importantly, the guidelines were largely
inconsistent with state building codes. After many years of assessing
industry standards, model building codes, and other practical considerations,
the United States Access Board adopted new guidelines, effective
September 21, 2004 (available at www.access-board.gov). The new
guidelines will be adopted by the U.S. Department of Justice following
a notice and comment period that is expected to conclude later this
year. The new guidelines will apply to new construction and remodeling
projects and will also likely serve as the new standard for defining
“accessibility” of older buildings in California access litigation.
One court recently referred to ADA suits as
“shotgun litigation.”
Since 1978, California's disability access guidelines have
been part of the steadily evolving state building code, published
as Title 24 of the California Code of Regulations. California building
inspectors, authorized to enforce only the state building code,
are often unfamiliar with federal access rules. Not surprisingly,
despite some attempts at harmonization, the state and federal rules
are still at odds. See Gibbens, California Disabled Accessibility
Guidebook 2003 , chap 1 at 3-8 (5th ed 2003). Accordingly,
an architect or contractor may accurately report that a new building
was designed to comply with disability laws and met with full approval
from the local building authorities—while still leaving the building's
owner and operator vulnerable to disability lawsuits. Worse, buildings
designed and built before the access guidelines existed, or before
they were modified to their present requirements, must bring some
architectural elements into compliance with current law—euphemistically
referred to as “removing barriers”—whenever it is “readily achievable.”
“Readily achievable” is defined as “easily accomplishable and able
to be carried out without much difficulty or expense.” 42 USC §
12181(9). This means that even a building owner or operator, determined
to identify which access laws apply to a given property, may reasonably
believe a property is fully compliant when it is not.
A building owner determined to identify which
access laws apply to a given property may reasonably
believe a property is fully compliant when it is
not.
The Department of Justice does not allocate significant
resources to enforcing the ADA; “citizen” lawsuits to enforce it
may yield only a court order for injunctive relief, usually to remove
an identified barrier. The reason ADA citizen suits are so prevalent
in California is that, unlike in most other states, a litigant can
add a companion state-law claim and recover both penalties and damages.
California's Unruh Civil Rights Act (CC §51) and Disabled Persons
Act (CC § §54—55.2) authorize a statutory penalty against
business establishments for discrimination against persons with
disabilities. Since 1992, the Unruh Act has defined any ADA violation
as an act of discrimination. CC §51(f). Neither intent to discriminate
nor actual harm is required, and the amount of the penalty is $4000
per violation. CC § 52(a). Courts have discretion to set the
statutory penalty by multiplying $4000 by the number of times a
litigant was discouraged from using a business establishment because
of an ADA violation, leading to significant sums being awarded.
See Botosan v. Fitzhugh (SD:Cal 1998) 13 F Supp 2d 1047,
1051 (“deterrence alone suffices to lay claim to actual damages”);
Arnold v. United Artists Theatre Circuit (ND Cal 1994)
866 F Supp 433, 439 (damages can be awarded each time plaintiff
is deterred or discouraged from using public facility because of
access issues). A citizen suit also entitles the successful plaintiff
to attorney fees and costs, including the often-significant cost
of surreptitiously researched pre-litigation “expert reports” identifying
the target site's alleged ADAAG violations. Even the least sophisticated
reports can cost many hundreds or thousands of dollars.
ADA citizen suits are prevalent in California because
a litigant can add a companion state-law claim
and recover both penalties and damages.
The authors of the new federal guidelines anticipate much
greater consistency between state and federal law over time. However,
business owners and operators can expect to continue to be subject
to Unruh Act penalties—even when their buildings are fully compliant
with all state access laws and building codes and the objectionable
“architectural barriers” represent only minor variations from published
ADAAG standards—because of the incentive to identify any inconsistency
with the latest guidelines as an “ADA violation.” (For example,
if ADAAG requires signs with specific color, size, and wording to
be posted, it is nearly certain that posting a sign in perfect compliance
would be “readily achievable” and use of slightly discrepant signage
would be a sufficient ADA violation to merit a $4000 Unruh Act penalty,
plus fees and costs. Similarly, a parking lot that had enough spaces
and proper striping when it was installed in 2002 will trigger an
Unruh Act penalty in 2005 if the owner repaints the old surface
without reconfiguring consonant with the new ADAAG regulations.)
A citizen suit also entitles the successful plaintiff
to attorney fees and costs.
Although the revised guidelines are intended to track building
industry standards and permit a wider range of compliance, they
also add new requirements, including expanded access to ATM machines
by the visually impaired, larger toilet stalls, and increased numbers
of designated parking spaces for the mobility-impaired. As the new
guidelines are adopted and enforced by the Department of Justice,
they will begin to set the standard for new construction and for
litigation over access to older buildings.
The “Readily Achievable” Conundrum
The Unruh Act and Disabled Persons Act ordinarily trigger
the statutory penalties and attorney fees that fuel California's
access litigation. The Unruh Act, in turn, is triggered by a violation
of California law requiring accessible restrooms in public accommodations
(Health & S C § 19955) or by violation of the ADA. Not
every inconsistency with ADAAG in an older building, however, is
an ADA violation: The ADA requires owners and operators of facilities
that were already built when it went into effect to remove barriers
only when the removal is “readily achievable.” 42 USC §§12182(b)(2)(A)(iv),
12181(9). What is “readily achievable” in a given case depends primarily
on the nature and cost of carrier removal and the resources of the
business involved, including the overall financial resources of
any parent corporation or entity. Moeller v. Taco Bell Corp
. (ND Cal 2004) 220 FRD 604, citing28 CFR §36.104,42 USC
§12181(9) (enumerating factors used to determine whether action
is readily achievable).
ADA requires owners and operators of facilities
that were already built when it went into effect
to remove barriers only when the removal is “readily
achievable.”
An older building that does not have at least some minor
violation of the federal access guidelines is rare, e.g.,
a toilet grab bar will be a fraction of an inch too far from a back
wall because the installer paid more attention to finding solid
joists than to measuring; a parking lot will have settled, creating
a ramp that is a few degrees too steep; store aisles will have been
narrowed by the placement of merchandise or decorations. Commonly,
a business operator or property owner (including anyone who operates
a business inviting the public into its facility, e.g.,
restaurants, entertainment venues, lodging establishments, retailers)
will become so accustomed to seeing disabled customers using the
establishment that he or she will claim full compliance without
ever thinking about measuring the slope of ramps, the weight of
doors, or the height of check-out counters. The operator or owner
may not realize that a court can award penalties for not making
readily achievable” modifications, or that most newer insurance
policies exclude or limit coverage for litigation based on allegations
of access violations.
Disability Access Litigation
Businesses are typically not sued by their “regular” customers.
Most California disability cases are pursued by a handful of plaintiffs
and lawyers that have made disability access lawsuits into a coffage
industry. The complaints, most often filed in federal court, look
strikingly similar to one another. They contain causes of action
for violations of the ADA, the Unruh Act, the Disabled Persons Act,
Health and Safety Code §§19955—19959.5, the Unfair Business
Practices Act (Bus & P C §§17200—17210), and common
law negligence. The complaints typically consist of a history of
the accessibility laws and boilerplate language accusing the defendant
of intentionally and deliberately discriminating against disabled
persons by not removing barriers to access. Increasingly, complaints
are accompanied by expert reports that compare on-site measurements
to ADAAG specifications in parking lots, entrances, aisles, restrooms,
merchandise displays, service areas, and counter-tops. They nearly
always allege at least some ADAAG violations that are so minor as
to inevitably qualify as “readily achievable” ( e.g ., the absence
of a sign, an unwrapped sink pipe, a slightly high counter-top,
or a missing handrail).
Most newer insurance policies exclude or
limit coverage for litigation based on allegations
of access violations.
Sometimes, an entire industry or geographic area will be
targeted by a single lawyer or plaintiff. In 2002 and 2003, a vast
number of Northern California homebuilders and wineries were sued
in waves that appeared to be industry-targeted. Often, the targeted
businesses stand out from their neighbors in physically significant
ways, including:
• The parking lot looks “ADA suspicious.”
The striping may be old and worn. Blue disability parking signs
are missing or defaced, or have no telephone number listed in the
blank space at the bottom. There is no “van accessible” sign in
sight, or the space marked for wheelchair access is far away from
any entrance. The walkway from the parking lot to the entry is made
entirely of gravel or exposed aggregate. Public sidewalks are visible
from the entrance, but getting from the sidewalk to the business
through a parking lot requires walking (or rolling) through a sea
of parked or moving cars.
• The front entrance is a disaster .
There is no universal symbol (the blue wheelchair figure) near the
front entrance, and inaccessible entrances have no directions to
the more accessible ones. Worse, there are steps between the walkway
and what appears to be the main entrance. The front door is narrow
or has an old-fashioned knob instead of a lever handle or pushing
surface. There is no metal kickplate on the door, or the entrance
is flush against a long ramp that doesn't flatten out in front of
the door.
• Older buildings have outdated restrooms .
The only bathroom is upstairs in a building without an elevator
or down a narrow hallway or steep ramp. It has no universal symbol
on the door. The door is heavy or narrow or cannot be fully opened
because of an obstruction. The sink has unwrapped pipes or a cabinet
under it. There is no wide stall with grab bars on three sides.
The soap and paper towel dispensers, counters, or mirrors are out
of the reach of a school age child.
• Older buildings have outdated trade fixtures
or design elements. The height of the counter where money
changes hands is suitable only for an able-bodied adult to write
a check, or the credit card processing machine is positioned at
the same height. The space is too narrow for a wheelchair to pass,
and no signs explain how a person in a wheelchair is supposed to
pay. The place where customers are supposed to sit or stand can
be reached only by stairs or steep ramps or through a narrow aisle.
The tables and chairs are bolted to the floor or for some other
reason prevent a person seated in a wheelchair from pulling up close
enough to reach food or drink on a table-top.
• Cluttered passageways are visible .
Aisles and walkways are partially blocked by trash cans, newspaper
boxes, sculptures, plants, or merchandise displays. The barrier
objects appear to have been there a long time.
These common failings trigger an easily supportable allegation
that removing the barriers would have been “readily achievable.”
28 CFR §36.104. A claimant is nearly guaranteed recovery of
statutory penalties and attorney fees by arguing that such modest
barrier removal is a nominal cost of doing business—indeed, putting
a telephone number on a sign, moving a display rack, or adjusting
door pressure costs nothing. Barrier removal that requires significant
capital expenditure is often demanded in a complaint, sometimes
triggering a baffle over exactly what the business can afford. At
least one court has found that a business can afford to remove barriers
even at great cost if its competitors have done so. See Lieber
v Macy's West, Inc . (ND Cal 1999) 80 F Supp 2d 1065 (increasing
aisle space on Macy's sales floor was “readily achievable” despite
demonstrated financial hardship because Nordstrom managed to keep
its aisles clear).
Reducing the Risk of Suit
There is probably no way for a California business owner
or operator to be fully protected against potential ADA litigation—especially
if the business is housed in an old building or served by an old
parking lot. But business establishment can reduce its chances of
being targeted by a disabled customer by acting before being sued.
There is probably no way for a California business
owner or operator to be fully protected against
potential ADA litigation.
The first step is to hire a consultant who specializes
in both state and federal disability access laws and regulations
to inspect the facility. A conventional builder or contractor (whose
expertise is usually restricted to California law) will not suffice
because, even if a facility complies with California's building
code, it may be out of compliance: with federal law. The qualified
consultant should perform a detailed inspection and inform the business
of potential violations of access laws and regulations. Many common
violations, e.g., parking lot striping, proper signage,
and the height of restroom fixtures, can be fixed with an investment
of a few hundred dollars—much less than the cost of defending an
ADA lawsuit.
Another important strategy is to train employees having public
contact to provide respectful assistance to patrons with disabilities.
Extra assistance should be offered whenever such help facilitates
customer access to goods and services (for instance, offering a
clipboard for writing or bringing merchandise directly to the customer
when access to the usual display area is blocked). Employees should
also know that, barring a demonstrable threat of harm, animals accompanying
customers cannot be evicted if the customer claims that the accompanying
animal is a “service animal.” Lentini v. California Ctr for
the Arts (9th Cir 2004) 370 F3d 837 (barking lap dog, wrongfully
evicted from performing arts center, was service animal relied on
for emotional support). Accommodations should be routine when they
are requested to allow hearing- or vision-impaired customers to
communicate. Thus, written or audiotaped materials should be available
on request, and a sign-language interpreter may be required if a
timely request is made- in advance of a public seminar or individual
office appointment. Employees also should know how to contact a
company decision-maker in the event a customer's disability creates
an unusual or difficult accommodation challenge.
Intentional Misconduct: Federal Versus State
Law
Although intentional conduct is a requisite under the Unruh
Act, the Ninth Circuit has recently held that no showing of intentional
discrimination is required when an Unruh Act violation is premised
on an ADA violation. “This result is mandated by the plain meaning
of the Unruh Act's language, which states that a violation of the
ADA is, per se , a violation of the Unruh Act.” 370 F3d
at 847.
Once a business makes necessary changes to its
facility, the ADA claims become moot.
Once a business makes necessary changes to its facility,
the ADA claims become moot. As a result, some defendants are getting
federal cases remanded to state court or dismissed ( Pickern
v. Best W Timber Cove Lodge Marina Resort (ED Cal 2002) 194
F Supp 2d 1128 (after access barriers were removed from property,
case dismissed for lack of jurisdiction)), although state law is
in many instances predicated on a violation of ADA regulations.
Wander v Kaus (9th Cir 2002) 304 F3d 856. In state court,
a plaintiff who can prove the lawsuit was a catalyst for businesses
to make compliance changes can still be awarded attorney fees, even
if there are no barriers at the time of trial. Barrios v California
Interscholastic Fed'n (9th Cir 2002) 277 F3d 1128.
In state court, plaintiffs can also be awarded punitive damages
and damages for emotional distress.
Award of Attorney Fees
Can defendants who are wrongfully sued recover attorney
fees? While the ADA grants courts discretion to award them, California's
Disabled Persons Act mandates an award of attorney fees to the “prevailing
party.” CC §55. However, a defendant may have difficulty qualifying
as the prevailing party because a disabled plaintiff is considered
a prevailing party “where the lawsuit was the catalyst motivating
the defendants to modify their behavior or the plaintiff achieved
the primary relief sought, even if a judgment is entered in favor
of a defendant on the plaintiff's claims.” Goodell v. Ralphs
Grocery Co. (ED Cal 2002) 207 F Supp 2d 1124, 1127. Despite
this stringent standard, plaintiffs have been forced to pay substantial
attorney fee awards when their state law claims failed. In one case,
the judge explained:
Plaintiff elected to bring state law claims in addition to his
federal claim under the ADA. The risk of paying attorney's fees
to defendant was one that plaintiff accepted when he chose to seek
relief based on state law. Had plaintiff elected to rely exclusively
on federal law, he would have had to forgo a claim for damages (because
the ADA provides only for injunctive relief), but would not have
exposed himself to liability for attorney's fees under state law.
Plaintiff decided to clump his federal and state claims together,
and therefore ran the risk of an award of attorney's fees under
state law.
207 F Supp 2d at 1129.
Conclusion
California businesses are vulnerable to disability access
litigation because the access regulations are so highly detailed
and numerous and because state and federal laws are inconsistent.
Few courts in California are willing to scrutinize and, even when
justified, penalize the conduct of an ADA litigant (or the litigant's
lawyers) the way the judge did in Molski v Mandarin Touch Restaurant,
supra . The best way to limit exposure, then, is to invest
the time and money required to bring facilities into compliance,
focusing first on signs, parking areas, entrances, and the most
commonly used and highly visible features of the building. New access
guidelines have been approved by Congress and will go into effect
over the next year or two, so businesses should make sure their
architects, contractors, and attorneys are fully up-to-date before
initiating any modifications to their premises or customer relations
policies that may impact access by the disabled.
This material is reproduced from
Real Property Law Reporter (v. 28, 3 (May 2005) copyright 2005,
by the Regents of the University of California. Reproduced with
permission of Continuing Education of the Bar - California. (For
information about CEB publications, telephone toll free 1-800-CEB-3444
or visit our website, CEB.com).
