The ADA: Titles II and III

Snow Removal and the ADA

Does the Americans with Disabilities Act (ADA) require me to remove snow from the sidewalk in front of my business?  The short answer is "yes."

Business owners in Ohio are generally not required by common law to remove snow or ice from its sidewalks.  The Ohio Supreme Court said, in essence, that Ohio winters can be tough, and if you go out in bad weather, you are responsible for your own safety.  A business might still be responsible to remove snow under local laws or municipal ordinances.  Additionally, a business might have the responsibility under the terms of its commercial lease to remove snow. 

Regardless of state or local law, or commercial lease terms, the business might be responsible for snow removal under the Americans with Disabilities Act.  The ADA states that a route into a business must be made accessible and usable to people with disabilities.  A route is not just the sidewalk.  A route includes the disabled parking spaces, pathways from parking to any sidewalk and pathway to the business entrance.  Accumulations of snow and, or, ice might make it impossible for someone in a wheelchair or using a walker to get through the snow and into the business.  The ADA points out that temporary or isolated periods of inaccessibility can happen but must not exist beyond a reasonable period of time.

If a business leases space, and the landlord is the responsible party in the lease for removing snow and does not remove it, the business cannot absolve itself from responsibility for noncompliance with the ADA.  The ADA holds all parties jointly liable.  A complainant can sue both the landlord and business tenant.  The tenant can then sue the landlord for indemnification per the landlord's contractual duty under the lease, but the business tenant cannot escape responsibility under the ADA by contracting its duties away.

The best advice for businesses in Ohio and other wintery states is to keep pathways and disabled parking spaces clear of snow.

Extra charges for gluten-free menu items and the ADA

P.F. Chang's restaurant adds a $1 surcharge for items from its gluten-free menu.  It is being sued by a woman with celiac disease (as part of a class action) who claims that the surcharge is discriminatory and in violation of the Americans with Disabilities Act (ADA).

Without commenting further on the lawsuit, I could guess instantly at the problem.  Gluten-free food is what a person with celiac disease is limited to eating, it is not just a preference.  Celiac disease can be disabling; moreover, it can be life threatening.  So, why grab the attention of a diner with a medical condition by saying that they must pay extra for their food?  Even if this lawsuit fails, my point stands.  The same result could be expected of a parking lot that charges extra for the larger and closer disabled parking spot, or the museum that actually charged extra for patrons who used electric wheelchairs as a surcharge against any resulting damage to exhibits.  If you court attention by singling out anyone with a disability, in today's society you will court a lawsuit.  This is not simply because of a litigious society, but because people are more aware of the law, of disabilities, and of a disdain for being treated unfairly, whether it is justified or not.

The Department of Justice has determined that food allergies can be a disability under the ADA. Whether this is a slippery slope argument remains to be seen--will plus-sized clothing that typically costs more than the "regular sized" clothing be considered discriminatory?  I doubt it.  Plus-sized clothing costs more to make, and being overweight is not necessarily disabling.  Compare that to food preparation--if gluten-free food does not cost more to make, but costs more perhaps because it is not made as frequently, then charging more would be discriminatory.

Basic Advice 101 on avoiding an ADA lawsuit: do not single out disabled customers.  Or, per the advice of Dallas attorney Richard Hunt, an ADA expert, P.F. Chang's executives should have asked themselves how they would have treated their mothers.  "Mom, I know you have celiac disease, and you are required to choose gluten-free food.  Fortunately, we have a gluten-free menu; unfortunately, you must pay extra."

The general argument regarding discriminatory pricing is, if you offer for all (food), charge prices that do not single out a disabling condition.

Businesses can spot fake service dogs

Real service dog:

Fake service dogs:

There has been a lot of discussion about fake service animals.  That issue is a real problem.  Businesses are not as powerless to distinguish real from fake service animals, however.

A short primer on the law: the Americans with Disabilities Act (ADA) is the pertinent statute (along with state law).  The ADA permits dogs and miniature horses as services animals, but since dogs are so much more common, this post will address the canine community.  Businesses can, under the ADA, ask only two questions of a service dog's handler (the person with a disability): 1) is the dog a service animal required because of a disability, and 2) what work or task has the dog been trained to perform?  http://www.ada.gov/service_animals_2010.htm

The biggest complaint of the business community is that they believe their hands are tied because they cannot ask for certification (there is no requirement for certification), they can't identify a service dog by a vest, or tags, or identifying garb (also not required by law).  What, then, can a business do?

First: ask the questions above.  A handler of a true service dog will be prepared to answer, and will likely gladly answer because you are showing that you know the law.  If you ask either of the questions above and receive no answer, a blank stare, or garbled nonsense, then be on alert for the following described below.

Second: watch behavior.  Service dogs are highly trained.  Their training costs about $15,000+.  If you are suspicious, watch the dog's behavior.  It will be working, paying attention almost exclusively to its handler.  It will be at the handler's side, waiting for the handler's commands.  It will sit next to the handler, lie down on the floor if the handler is seated.  What won't the dog be doing, and should alert you that it's not a service dog?  It will look around at everyone, seek attention from others, sniff others, engage with or play with other dogs when it should be working, it will bark or whine, walk away from the handler, accept food and attention from others, circle around the handler, act hyper or playful when working.  Chances are, this is not a service dog.

Third: even if the dog is a true service animal, if it relieves itself in the establishment, or acts disruptive (incessant barking), it can be asked to be removed.

Two incidents illustrate my points.  While at the O'Hana restaurant at Disneyworld, I saw a man bring in a yellow lab decked out in a vest and leash covered with patches and garb.  It was "overly" decked out which sent up red flags for me.  Sure enough when the staff took the man and his family to their table, the dog was sniffing all over and proceeded to jump up with its front paws at a table of other diners.  Unless the man could show that this was a service dog in training, the restaurant would have been justified in having the dog leave due to its disruptive behavior.

Another incident occurred when a man took his dog, that actually was a service dog but evidently not trained well, to a beach area that prohibited pets.  The dog was running around to everyone, running up and down the beach, relieving itself in the sand, and rarely with its owner.  The man was asked to remove his service dog, he later sued, and a court found for the municipality because the dog was not acting as a trained service dog.  Behavior matters!

A couple of things to keep in mind.  Some service animals will act out of the norms above if necessary due to the disability of its handler.  For example, children with autism can "bolt" away from their families, and a service dog for a child with autism if often trained to, for lack of better wording, "go crazy" in getting someone's attention to let that person know that the child has separated from the dog.  Similarly with epilepsy and diabetes, service animals are trained to alert others, which a business might interpret erroneously as being hyper.  In asking the two questions above, the business should then know that this behavior is what the dog is trained to do.

Common sense prevails.  Is the dog focusing on its handler, staying with him or her, acting like it's working? Or is the handler tugging on the leash as the dog drags the handler, is it jumping up on people, is the dog oblivious to its owner and sniffing all around?  Or worse, jumping up on other diners' tables?

Questions?  Email me at [email protected].

Rooftop Dining popping up--will ADA lawsuits follow?

The recent trend in dining was outdoor patios.  Now, the trend is "rooftop dining."  Restaurants, particularly trendy establishments, are renovating their structures to accommodate diners on the roof, with typical targeted marketing.  Some restaurants have touted rooftop views of the city, while others offer "rooftop menus" made with fresh produce actually being grown on the roof.

The majority of these establshments do not have elevator access to the roof.  (Most existing elevators do not go up to the roof.)  Diners using wheelchairs or those who have more serious mobility limitations do not have access to the roof.  Will ADA lawsuits follow?  A restaurant owner considering a renovation to a new structure to permit rooftop dining asked whether he will face ADA lawsuits.  As with most attorney answers, I said "It depends."

If the rooftop dining's seating comprises 25% or less of accessible seating areas then the area is not required to have an elevator.  More specifically, an "accessible means of vertical access is not required."  (Note that the 1991 Standards "33% rule" changed in 2010 Standards to 25% rule.)  Additionally, the decor and services offered in the inaccessible area must be offered in the accessible area.  Therefore, a "rooftop menu" should be made available in accessible areas as well.

Obviously, a "rooftop view of the city" cannot be made available to non-rooftop guests.  I tend to avoid stating my personal opinion, but a safe means of egress in a fire or other emergency for someone with mobility limitations would be another hurdle. 

One example on point of this topic:  http://www.press-citizen.com/story/news/local/2014/08/02/hop-rooftop-dining-area-wheelchair-accessible/13503081/.

Moms of children with autism sue Disney under ADA

People with disabilities who visited a Disney park were provided a pass that permitted bypassing the long lines and almost immediately accessing the ride or attraction.  This program came to a swift end once abuses were spotlighted in several television news programs.  People with disabilities would get their pass, then "escort" people with them to the front of the lines for a fee.  The stories that garnered most attention, and anger, were those that focused on wealthy families hiring "guides" to attend the park with them--the guides were not Disney employees or "docents" but, instead, people with disabilities who would get the family to the front of the lines.

Disney ended this method of accommodating and uses their "Fast Pass" program instead.  For each ride, you receive a Fast Pass that will give you a time to return to the ride or attraction and gain access.  If your Fast Pass is for one hour, you return in one hour, with no to minimal waiting. 

Mothers of children with autism and developmental disabilities filed a lawsuit a couple of days ago against Disney (A.L., by and through D.L., as Next Friend et al v. Walt Disney Parks & Resorts US Inc.), alleging violation of the ADA.  The plaintiffs allege that Disney discriminates against people with autism (and similar disorders) by making them wait in long lines, which is impossible for them to do as a function of their disability. 

 

No Longer Brick & Mortar

Web and mobile accessibility are the new frontier for the Americans with Disabilities Act (ADA).  There is little doubt that title III of the ADA applies to websites, and the Department of Justice will promulgate rules on that in the near future.  A recent post by law firm Seyfarth Shaw in their blog, ADA Title III: News and Insights, reflects this new ground for accessibility, websites, annd mobile applications.

Doctors, Dentists and Medical Providers: The Next Wave of ADA Litigation?

Texas attorney Richard Hunt posted about the next wave of ADA focus and litigation, medical providers and people with disabilities.  While his expert analysis focused more on people with hearing impairments, it prompted my recent thought about people with physical impairments who use wheelchairs, or who are otherwise unable to stand or walk.

The Americans with Disabilities Act requires medical providers to provide accomodations to patients with disabilities.  For people who are deaf, a doctor or dentist may be required to provide an interpreter (see Richard's post on Accessibility Defense via the link above).  For a patient in a wheelchair, what accommodations might be needed? 

If exam tables cannot be lowered to allow for transfer from a wheelchair to a table, staff might be required to lift the patient up to the exam table.  If the table can be lowered but the patient is unable to transfer, lifting might still be necessary. 

One obvious issue becomes the safety of staff required to lift a patient.  Another issue is tort liability--what if staff dropped the patient and caused an injury?  What if a doctor's staff consisted only of a nurse and receptionist--would "undue hardship" be a viable defense?  Would an adjustible exam table, or overhead lift, be cost prohibitive?

Requiring staff to lift or move a person with a mobility disability presents numerous concerns of safety and liability.  Yet, people with mobility impairments routinely lack good health care due to limitations of getting onto an exam table, into an x-ray or MRI machine, or into a dentist's chair.  It will be interesting to see how litigation affects these conflicting issues.

Misconception Series, #10: "Title ___ Doesn't Apply To Us"

Welcome to the final installment in the "Misconception Series" of posts about misconceptions surrounding the ADA.  This post corresponds with a recent event--not too coincidental because this misconception occurs fairly frequently.

Regarding the ADA Titles II and III, it is believed by many that the titles are mutually exclusive, i.e., if Title II applies to us then Title III does not.  Title II covers state and local programs and services; Title III covers public accommodations and commercial facilities.  Specifically, under Title II a local government would be required to make a program accessible so, if a city held a city event in an inaccessible building, instead of making the building accessible it could just move the program to an accessible building.   There is no need to engage in "readily achievable barrier removal" on an ongoing basis.  (Note that state and local governments are obligated under several different statutes that require accessibility, including state law.)  Under Title III, public accommodations (businesses) must make the facility accessible, engage in readily achievable barrier removal in certain structures.

A city holds a large city-sponsored event at a park that has an inaccessible shelter house, where many activities occur.  This same resident then attends a birthday party at the shelter house that was rented by a city resident, and had to leave because the shelter house could not be accessed.  The disabled resident complained, and the city's law director stated that they will not provide a ramp into the shelter house (a readily-achievable barrier removal) but, instead, will move the city event.  What about the private birthday parties, other private events where the city rents the shelter to the public?

The law director mistakenly assumes that only Title II--move the city program to an accessible location--applies to the city.  Because the city rents the shelter house to the public, Title III now applies and the city must engage in readily achievable barrier removal in the structure built in the 1950s.  It is not sufficient to just move the city's programs.  For this local government, both Title II and III apply.

Misconception Series, #9: "Lawsuits on Wheels"

Although ADA litigation appears to be more successful since the clarity set forth in the 2008 Amendments (and 2010 Standards), generally speaking, people with disabilities do not sue an establishment.  When do people sue?

(What follows, below, is my opinion as an attorney regarding when people sue under the ADA, and their motivations.  My opinion is based upon years of reading and writing about the ADA, and following litigation and trends involving the ADA.)

Businesses of limited means are often counseled to approach initial accessibility compliance by the “in & out” approach: can a person with a disability park, enter the premises, get around the store, and leave?  The reason for this approach is because, if someone (typically speaking, someone with a mobility limitation) can get to the business, enter, get around the aisles, and exit, then there is a decent likelihood that an accessibility claim will not be raised.  If someone in a wheelchair can park, enter a store, purchase something, and leave, there is a greatly-reduced risk that a lawsuit will result due to non-compliant signage, or the counter being too high.  If the patron’s “basic needs” are met, then people do not sue generally due to lack of interest, lack of time, and lack of resources.

This scenario obviously changes if someone with a disability is looking for violations.  Most establishments will likely have something that does not comply with the Standards.  People looking for violations have covered the other bases as well: they have an interest because they have both the time and resources (an attorney or group to represent their legal interests).

Another reason for lawsuits that do not involve people looking for violations is the response someone with a disability receives regarding a violation.  For a wheelchair user in Indiana, a major movie theater had disabled parking at the theater but no curb cut and no wheelchair access up onto the sidewalk.  The patron was lifted up onto the sidewalk, and once inside approached the manager to inquire.  His response: “Not our problem, go talk to the city [theater was on private property leased by the theater].”  The result?  A $5,000+ lawsuit.  Compare this situation to one where a city had a large sign at a beach entrance with “Beach Regulations” that included “No animals or pets.”  This is an ADA violation because service animals would be permitted.  The city attorney was contacted, and within one day the city responded, acknowledged the error, and purchased signs to affix to the beach rules stating “Service Animals Permitted.”  The result?  A complimentary Letter to the Editor, and more importantly, no lawsuit. 

 Compliance is key, but until that is achieved, attitude goes a long way.

Misconception Series, #8: I can't be sued (under ADA) for money damages

A recent article posted on a legal self-help website stated that business owners should try to review their business for accessibility to capture the "disabled customer marketplace."  Whether or not this review was done, the article goes on to state that a business cannot be sued for money damages anyway, so accessibility is good for attracting disabled customers but there is no need to fear being penalized monetarily if a business does not comply with the ADA. 

This is an example of bad advice by "omission."  It is true that the Americans with Disabilities Act allows plaintiffs who sue privately to obtain an injunction, not money damages.  However, as several plaintiff's attorneys know, a plaintiff can recover attorney fees, and in some circumstances these fees have reached 5 and 6 figures.  The small business audience reading the article mentioned above would be paying--it would be paying money to attorneys for their legal fees. 

Additionally, if the Department of Justice decided to sue based on a person with a disability's complaint, then compensatory damages to the plaintiff could be recovered.

Finally, a disabled plaintiff who sues a business for being inaccessible can recover monetary damages in some states under state disability laws.  In California, damages in the amount of $2,000 could result for each violation.