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The Americans with Disabilities Act (ADA) is a Federal civil rights law that prohibits the exclusion of people with disabilities from everyday activities, such as buying an item at the store, watching a movie in a theater or enjoying a meal at a local restaurant. To that end, the law was designed to provide disabled individuals with access to the same benefits and accommodations as every other American.

To meet the goals of the ADA, the law established requirements for private businesses of all sizes. Private businesses that provide goods or services to the public are called public accommodations in the ADA. The ADA establishes requirements for twelve categories of public accommodations, including stores and shops, restaurants and bars, service establishments, theaters, hotels, recreation facilities, private museums and schools and others. Nearly all types of private businesses that serve the public are included in the categories, regardless of size.

Existing Facilities, New Construction and Alterations

Those that own, operate, lease, or lease to a business that serves the public are covered by the ADA and have obligations for existing facilities as well as for compliance when a facility is altered or a new facility is constructed. See ADA Guide for Small Businesses, page 2, fourth printing, June 1999; available at https://www.ada.gov/smbusgd.pdf. Existing facilities are not exempted by “grandfather provisions” that are often used by building code officials.

Those that own or operate a business that serves the public must remove physical “barriers” that are “readily achievable,” which means“ easily accomplishable without much difficulty or expense.” The “readily achievable” requirement is based on the size and resources of the business.

The ADA requires that newly constructed facilities, first occupied on or after Jan. 26, 1993, meet or exceed the minimum requirements of the ADA Standards for Accessible Design (Standards). Alterations to facilities, spaces or elements (including renovations) made on or after Jan. 26, 1992, also must comply with the standards. Those building a new facility or modifying an existing one, (for example, work such as re-striping the parking area, replacing the entry door or renovating the sales counter), should consult the standards and the title III regulations for the specific requirements.

ADA litigation and “tester” plaintiffs

In the event that a lawsuit is filed alleging a violation of the ADA, the law permits courts to award equitable relief and attorney fees to a prevailing party. An ADA “tester” is one category of “disabled individuals, who, frequently along with an organization dedicated to the rights of the disabled, are ‘serial plaintiffs’ or ‘testers’ acting as private attorneys general challenging various entities’ noncompliance in their places of public accommodation with Title III of the ADA, leading to a wide and varied spectrum of judicial decisions addressing complex issues of, and policies regarding, standing.” Gilkerson v. Chasewood Bank, 1 F. Supp. 3d 570, 573–74 (S.D. Tex. 2014). “Because the statute does not authorize an award of damages to a prevailing plaintiff, but only equitable relief and an award of attorney fees, concerns about abusive litigation by plaintiffs lawyers must be balanced against widespread noncompliance with the ADA and inadequate enforcement of the civil rights of individuals with disabilities.” The federal district courts in Texas are no stranger to tester cases. A search of PACER records over the past 10 years reveals almost 1,000 such complaints (assuming that a serial tester was an individual who filed three or more such complaints).

Trends — website accessibility

The next frontier of ADA litigation may come from website accessibility issues. A significant development in this area occurred in June 2017, when a Florida federal district court judge found that grocer Winn-Dixie violated the ADA by having a website that was not useable by plaintiff to download coupons, order prescriptions and find store locations. Gil v. Winn-Dixie Stores, Inc., No. CV 16-23020-CIV, 2017 WL 2547242 (S.D. Fla. June 12, 2017). Plaintiff is blind and uses screen reader software to access websites. Following a bench trial, the judge issued a verdict and order that included draft injunctive relief and awarded plaintiff his attorney fees and costs.

Courts are split on whether the ADA limits places of public accommodation to physical spaces or includes websites. Those circuits that have concluded that places of public accommodation must be physical spaces have held that the goods and services provided by a public accommodation must have a sufficient nexus to a physical place in order to be covered by the ADA. Where a website is heavily integrated with physical store locations and operates as a gateway to the physical store locations, courts have often found that the website is a service of a public accommodation and is covered by the ADA. On the other hand, where a website is wholly unconnected to a physical location (such as Facebook or Netflix), courts have held that the website is not covered by the ADA.

What can be done to minimize the risk of an ADA lawsuit

Businesses should review their policies and procedures for serving customers and change those that exclude or limit participation by people with disabilities. For a commercial property owner seeking to avoid an ADA accessibility lawsuit, a few initial steps are recommended: Get the property surveyed for compliance with the applicable ADAAG guidelines/standards and use a knowledgeable attorney to analyze the results of that survey in order to assess just what are your legal obligations.

Scot Clinton is a senior associate at Wilson Cribbs & Goren, P.C. He has experience representing clients in lawsuits involving ADA claims and commercial real estate. He can be reached at sclintong@wcglaw.com.