By Timothy M. Murphy and Christopher D. Bryan, Hall & Evans, LLC
Claims and lawsuits under Title III of the Americans With Disabilities Act (“ADA”) against Colorado restaurateurs are rapidly becoming commonplace. On a single Friday in February 2016, seven such suits were filed in Denver Courts. All were filed against Colorado bars and restaurants, and all were filed by the same disabled individual. Unfortunately, much like our ski traffic, the frequency of such lawsuits is likely to get worse with time.
Title III of the ADA applies to places of public accommodation and commercial facilities and provides that:
“No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation by any person who owns, leases (or leases to) or operates a place of public accommodation.” 42 U.S.C. § 12182(a).
Title III ADA claims can take on two forms – they can be prosecuted by the Department of Justice, or can be filed by private individuals. Claims brought by the Department of Justice may simply result in an agreement for remediation of the violation, or in the event a pattern or practice of discrimination is established, could result in monetary and civil penalties up to $55,000 for the first violation, and $110,000 for subsequent violations.
Claims by private individuals under Title III are more common and relatively straightforward. To succeed, the claimant is required to show: (1) that he or she is disabled; (2) that the defendant is a private entity that owns, leases or operates a place of public accommodation; and (3) that the claimant was denied public accommodations by the defendant due to the claimant’s disability. If proven, Title III violations practically amount to a strict liability offense, and Courts are permitted to award costs and attorney fees to the prevailing party.
The potential for an award of attorney fees has become the driving force and primary motivation for bringing these actions, and filing attorneys are not likely to forego their right to recover fees and costs, even if the alleged violation is cured quickly. For that reason, cases filed by private individuals often result in early settlement in exchange for a negotiated amount of the attorney fees, together with a request that the Court place the case in abatement to allow the defendant time to cure the accessibility issue(s). However, issues surrounding the claimant’s standing to bring the lawsuit, or the scope and technical requirements of the alleged violation can sometimes be challenged, and some ADA claims can be successfully defended. As such, an early and expedient evaluation of the claim by an attorney, which considers the potential success and cost of defense, together with the cost of remediation and continuing fees and expenses of the claimant’s attorney and expert(s), should be considered.
While ADA standards and technical requirements are complex (and beyond the scope of this short article), owners and operators should be knowledgeable of ADA standards and common pitfalls. For example, there is no doubt that restaurants, bars and hotels fall squarely within the definition of places of public accommodation, and there are no exceptions to ADA compliance for restaurants. “Grandfathering” is also a common misperception. Although the applicable standards can vary, existing facilities are not “grandfathered,” and still must comply with Title III of the ADA.
The best measure in avoiding potential ADA claims is to ensure that your establishment is ADA compliant. Education and prompt action can help to minimize, if not eliminate, financial exposure for ADA violations. Challenges to ADA compliance are broad and can include attacks on the establishment’s written policies and procedures, construction and design elements, or even online reservation systems. Whether you are an existing business or a brand new restaurant or bar, completing a comprehensive ADA compliance assessment with a qualified accessibility expert or architect is the best way to identify issues of non-compliance, allows you to provide equal enjoyment to patrons, and protects against future liabilities. At the end of the day, if you are open to the public, you are bound to comply with the ADA.
Tim Murphy and Chris Bryan are attorneys at Hall & Evans LLC, a regional law firm focusing on civil and tort litigation. Historically, our attorneys have tried more cases to verdict than any other law firm in Colorado. We have more than 1,800 published decisions in the Tenth Circuit, Colorado Court of Appeals and Colorado Supreme Court. Hall & Evans, LLC, (303) 628-3300.