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Expert Opinion: Defending Lawsuits under Title III of the ADA

Title III of the Americans with Disabilities Act ensures that individuals with disabilities are not discriminated against with respect to the actions and activities of owners or operators of places of public accommodation such as shopping centers and strip malls, restaurants, physicians’ offices, zoos, amusement parks, museums, theaters, convention centers, arenas and stadiums.

Historically, Title III lawsuits brought by individuals or public advocacy groups have focused on physical or access-related issues with respect to places of accommodation — issues that are commonly referred to as architectural barriers. Examples of such architectural barriers include alleged problems or issues with or arising from: parking spaces; curb cuts; ramps; heights of bar and restroom counters; width of bathroom stalls; doors and doorways, including hardware; signage, seating and dining surfaces; and pathways and landings from parking spaces to buildings.

Pursuant to the ADA, the Department of Justice has published regulations to implement Title III, i.e., the ADA Accessibility Guidelines, which specifically address such items. These are often referred to as simply ADAAG.

New Type of Lawsuits
In the last several years, a new wave of ADA lawsuits has literally exploded on to the scene. These are claims against owners and operators of websites, alleging that these websites are not accessible to the legally blind or visually impaired. There has been a sharp rise in the number of such filed cases in 2017 and, thus far, in 2018.

In the one known such case to actually go to trial, namely Gil v. Winn-Dixie Stores, Inc., the United States District Court for the Southern District of Florida found that Winn-Dixie’s website violated the visually-impaired plaintiff’s rights under Title III in that the vast majority of the search tabs, together with the search box, on the company’s website did not function with screen reader software designed for individuals with visual impairments.

The landscape with respect to ADA lawsuits may, however, be changing rather significantly. In February of this year, the United States House of Representatives passed the ADA Education and Reform Act of 2017. The bill is currently before the Senate. While it has a number of different aspects to it, the most pertinent provisions of this proposed law are as follows:

1. The requirement of a detailed pre-suit notice to the owner or operator of a place of public accommodation, prior to filing a complaint in court;
2. Sixty days for the owner or operator to respond as to how he or she will address the alleged violations;
3. Another 60 days for that owner or operator to correct the alleged violations or make substantial progress in making such corrections.

In effect, the new bill would put a minimum 120-day freeze on the ability to file a lawsuit under Title III. Many — both those opposed to and those supporting this bill — believe that the proposed amendment to the ADA will drastically reduce the number of such lawsuits.

The best course of action for owners and operators of places of public accommodation such as shopping malls as well as those who own and operate websites is to be proactive on the front end. Do not wait until a lawsuit has been filed because, at that point, the focus will be as much on the attorney’s fee claim of the plaintiff’s lawyer as it will be on making necessary changes to alleged architectural barriers on the property or modifications to websites. Simply put, hiring and investing in an ADA expert prior to being sued, whether it is with respect to physical or access issues on the property or updating the website and then making the changes recommended by the expert, while admittedly not inexpensive in many or even perhaps most circumstances, may turn out to be much more cost effective than waiting to be sued and then having to hire a defense expert, pay for an attorney to defend the lawsuit, pay the plaintiff’s attorney his or her fee if and when the case settles and pay for the costs associated with becoming ADA-compliant anyhow.

Indeed, once a lawsuit is filed, the issue of the plaintiff’s attorney’s fees often becomes, for lack of a better term, the tail wagging the proverbial dog.

Businesses subject to Title III of the ADA would be wise to remember the words that Benjamin Franklin uttered over 200 years ago — “an ounce of prevention is worth a pound of cure.” That statement could not be more appropriate in the context of claims or potential claims under Title III. Take the necessary steps and spend the money now to minimize the possibility of a lawsuit that may very well cause one to spend more money and to take even more steps down the road.

Scott Topolski is a member of the litigation department in the Boca Raton (Florida) office of Cole Schotz.
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