Small Businesses Run Gauntlet of Disability Access Laws, Damages and Abusive Lawsuits

Article excerpt

A few days before Valentine's Day, I ventured into our local mall to buy Dorothy, my wife and much better half, a small token of my love and devotion. I did so on my trusty motorized scooter (which I've nicknamed "Libby"). I thought I would buy Dot a new blouse or perhaps some costume jewelry (the economy has ruled out the real thing). So Libby and I entered a small ladies' apparel shop named "Possibilities," and we proceeded down a rather long isle of "Coastal Chic" items (whatever that means) until we arrived at "Intimate Apparel" (a place in which no man wants to be marooned). Here the aisle ended, the only way out requiring a shopper to turn around and return whence he or she came. But the aisle was too narrow to allow Libby to make this maneuver. So I whimpered and moaned until I caught the store manager's attention. She politely told me the aisle was wide enough to allow a conventional wheelchair to turn around, but Libby was wider (however, I remembered reading in the ADA Update: A Primer for Small Business [at www.sdut.us/adaupdate] that "Businesses must allow people with disabilities to use ... power wheelchairs and scooters in all areas where customers are allowed to go").

After the manager physically removed several racks of ladies' skivvies, Libby and I turned round and escaped. But it occurred to me that the shop's "fault," though innocent and unintentional, could nevertheless have cost it significantly even if a court suit were avoided.

This experience prompted me to write the following to highlight the pitfalls that small employers face because of the disability access rules.

The accessibility requirements that federal and state disability rights laws impose on places of public accommodation and commercial facilities must give many small employers heartburn. Their businesses must comply with literally thousands of pages of federal and state disability access regulations containing numerous guidelines and standards on accessibility of buildings and facilities, the accessible design of new construction and alterations, and accessible transportation facilities.

The access regulations cover everything from the maximum permissible distance between toilet-paper dispensers and commodes in public buildings, to the design and angle of wheelchair ramps at railway stations. In one case, a Jack-in-the Box franchise owner was sued because the fast food emporium's restroom violated ADA design standards because the pipe under the sink lacked insulation and the wall mirror was placed too high.

Potential Damages

The financial burden that can result from a business's violation of the accessibility rules can be substantial. While federal law under the Americans with Disabilities Act (ADA) provides successful private plaintiffs with only injunctive relief for violations, and not monetary damages, state disability access laws are often a different story. For example, in California, a law called the Unruh Act--which includes any violation of the ADA within its scope-slaps a minimum penalty of $4,000.00, plus court--determined attorney fees, on "each and every" violation of the accessibility rules. The maximum penalty for an Unruh violation is three times the amount of actual damage plus attorney's fees. These penalties apply to minor and technical violations even if they are unintentional; no showing of discriminatory intent is required.

Although private plaintiffs are restricted to seeking injunctions to remove barriers or policies that impede disability access, the Department of Justice-the agency charged with enforcing the ADA's requirements-isn't so inhibited. If it first tries to settle a case through negotiation, the DOJ is authorized to bring a lawsuit where there is a pattern or practice of discrimination, or where an act of discrimination raises an issue of general public importance. …