It’s Not Too Late: What to do After Your Business is Sued for Violating the ADA

Businesses often do not learn that they are in violation of the Americans with Disabilities Act (ADA) until they are hit with a lawsuit from a disabled person.  At that point, some business leaders think that it is too late to do anything to help minimize their liability. However, there are two steps every Florida business leader facing an ADA suit should take:

1. Fix as much of the potential violation as possible.
2. Determine whether it is “readily achievable” to completely comply with the ADA.

Under some circumstances, taking these two steps may be enough to have an ADA suit dismissed.

ADA: Public Accommodations

Title III of the ADA prohibits discrimination on the basis of disability in places of public accommodations and commercial facilities.  Public accommodation is defined in 42 U.S.C. § 12181(7) and broadly includes a range of businesses, both for profit and not for profit, that are open to the public in some capacity, including:

• restaurants;
• schools;
• doctors’ offices;
• shopping centers;
• museums; and
• hotels.

If a business is open to the public, it is most likely a public accommodation or commercial facility for purposes of the ADA.  The number of ADA suits is rising at record levels—2018 is on track to have 30% more ADA suits than 2017.  In addition, Florida has the third highest amount of ADA suits.

Mootness

One basis for having an ADA suit dismissed is mootness.  Article III of the Constitution requires that lawsuits be based on an actual dispute with real harm, not a hypothetical situation with potential harm.  Kennedy v. Omega Gas & Oil, LLC, No. 18-10302, 2018 WL 4183462 at *3 (11th Cir. Aug. 31, 2018).  Mootness refers to a claim that a court can no longer address.  See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000).  A case may become moot if a defendant has ceased to engage in the conduct complained of and there is no realistic possibility that it will resume the wrongful conduct, or the parties have settled their case outside of court.  See Merkle v. Jacoby, 912 So. 2d 595, 600 (Fla. 2d DCA 2005).

In the context of an ADA suit, a plaintiff sues to force a business to comply with the ADA.  Under federal law, plaintiffs cannot recover damages for themselves.  The remedy available is usually an order to the violator to start complying with the ADA and sometimes attorney’s fees.  ADA litigation often takes years.  During the time between when the lawsuit is filed and when it is put to trial in court, a business can take steps to have the lawsuit deemed moot.

Fixing the Violations

The first step for a business owner to take in order to have a suit dismissed on mootness grounds is to understand the problems.  These can typically be found in the complaint.  There may be issues with parking lot signage, accessibility ramps, website design, store layout, or bathroom fixtures.

Second, a business owner must evaluate what it would take to bring the business into compliance with the ADA. Although the ADA is not a paradigm of clarity, it does lay out specific criteria for operators of places of public accommodation.  Reading a copy of the code, which is available online, is a good place to start.

Third, a business owner should take all reasonable steps to correct any violations of the ADA.  During this process, all changes should be thoroughly tracked and recorded for evidentiary purposes.

Readily Achievable

 The ADA recognizes that not all violations can reasonably be corrected which is why there is a “readily achievable” exception.  Keeping this in mind, “[t]he ADA imposes different requirements on the owners and operators of facilities that existed prior to [the ADA’s] enactment date [in 1993].”  Gathright-Dietrich v. Atlanta Landmarks, Inc., 452 F.3d 1269, 1273 (11th Cir. 2006).  For owners of older buildings, “the ADA states that discrimination includes a private entity’s ‘failure to remove architectural barriers . . . where such removal is readily achievable.’”  Id. (quoting 42 U.S.C. § 12182(b)(2)(A)(iv)).  “Readily achievable” is defined under the ADA as “easily accomplished and able to be carried out without much difficulty or expense.”  42 U.S.C. § 12181(9).

Readily Achievable Factors

Congress provided a non-exclusive list of factors that are relevant in determining whether removal of an architectural barrier is “readily achievable”:

• nature and cost of the action;
• overall financial resources of the facility involved;
• number of persons employed at such facility;
• effect on expenses and resources;
• impact of such action upon the operation of the facility;
• overall financial resources of the covered entity;
• overall size of the business of the covered entity;
• the number, type, and location of its facilities;
• type of operation of the covered entity; and
• geographic separateness, administrative or fiscal relationship of the facility.

42 U.S.C. § 12181(9).  The “readily achievable” exception is only available to facilities that existed prior to the ADA’s enactment in 1993.

Kennedy v. Omegagas & Oil, LLC: Business Wins on Mootness and Readily Achievable Arguments

The above-listed principles were effectively used in a recent federal case from the 11th Circuit that could be very helpful for businesses trying to have ADA suits dismissed.  In Kennedy v. Omegagas & Oil, LLC, a mobility impaired person visited a gas station in West Palm Beach.  Kennedy, 2018 WL 4183462 at *1.  She saw a number of potential ADA violations, including an improperly marked and blocked handicapped parking space, unsecured floor mats at the entrance, and multiple violations inside the restroom.  Id.  She then retained an ADA expert who also visited the gas station to note potential violations.  Id.

The owner of the gas station purchased the property fifteen years prior to the plaintiff’s visit and was unaware that his business was not in compliance with the ADA requirements.  Id.  After learning about the lawsuit, the owner reviewed a copy of the ADA statute and hired a handyman to help him bring his property into code.  Id.

Mootness

By the time the parties went to court, the gas station owner had remedied all but one of the ADA violations.  Id.  He moved the obstacles in the handicapped parking space, installed new signage, and made numerous improvements to the restroom including installing new grab bars, toilet, sink, and paper towel dispenser.  Id.

Readily Achievable Repair

The only violation the gas station owner had not fixed when the case was heard was to move a wall inside the bathroom back by three inches.  The business owner presented evidence that this repair would cost more than $80,000.  Id. at 2.  The court looked to the factors for determining what repairs were readily achievable for the gas station.  In doing so, the court balanced the cost of the renovation against the ability of the small business to bear such a cost.  While what is cost-prohibitive for one business may not be the same for another, the court reasoned that here, the cost was too much to reasonably expect the gas station to incur.  Id. at 5.

Conclusion

With ADA-based lawsuits continuing to rise in number, business owners must remain vigilant in ensuring compliance.  When confronted with a lawsuit, fixing the violations or proving why it is not reasonable to fix the violations can help get the lawsuit dismissed.  ADA lawsuits are expensive and time-consuming, so Florida business owners should seek competent counsel at the outset to request that the case be dismissed.