California Labor & Employment Law Blog

Posted by  Vanessa W. Whang

Are you one of the 910 businesses that were sued last year in California by someone claiming your restaurant failed to comply with the ADA? If so, you are likely familiar with the perils discussed in this article. If not, read on…

California Law Provides Broad Monetary Remedies for ADA Access Violations
In California, a plaintiff may recover automatic monetary penalties against businesses whose facilities fail to comply with the ADA Access Guidelines ("ADAAG"). Mere technical violations of the ADAAG allow California plaintiffs to sue for penalties of up to "three times the amount of actual damages but in no case less than $1000.00." That means that each technical violation may net a plaintiff a minimum of $1000. A greater automatic penalty of $4000 may also be available in certain cases.

As if these statutory penalties weren't bad enough, if someone sues you for failing to comply with the ADAAG, you may be required you pay his/her attorneys fees for having to sue you. In cases of intentional discrimination, punitive damages may also be available.

As a result of these conditions, a number of serial plaintiffs and their attorneys comb various regions of the state looking for businesses to sue. These “drive-by” lawsuits are now a cottage industry in California. So far, our legislature has refused to pass mandatory notice or other legislation minimizing the damage caused by these plaintiffs and their lawsuits.

Gunther v. Lin, 144 Cal.App.4th 223 (2006) – An Aid from the Courts.
Last fall in Gunther v. Lin, a California Court of Appeal held that the $4000 automatic penalty under Civil Code section 52 is only available in cases of intentional discrimination, not in cases involving inadvertent, technical violations. Although the Court did not give much guidance as to what constitutes "intentional discrimination," it commented that certain ADAAGs are so intuitive and obvious that the failure to have them could lead to a finding of intentional discrimination, but that others may not necessarily give rise to such a finding. In the spectrum of intentional discrimination, the Court specifically mentioned the failure to have at least one bathroom stall wide enough for a wheelchair to pass through. Many experts feel this case could help provide a defense to those truly frivolous drive-by lawsuits. However, the real consequences of this court opinion remain to be seen.

Tips for Restaurant Owners
In order to minimize your risk of being sued and to lessen the impact of ADA access lawsuits, you should:

1. Hire an ADA expert to inspect your restaurant, both inside and out so you know where you are vulnerable.
2. Make renovations to bring your restaurant into ADA compliance. If money is an issue, focus your efforts in two areas: 1) Obvious barriers (handicap parking spaces, handicap seating and proper access for wheelchairs especially in bathrooms); and 2) The exterior, especially the parking lot and entrance ways. Many plaintiffs simply drive by a location to evaluate a target before they sue.
3. Shift ADA access responsibility in leases and real estate contracts. Contracting away the cost or responsibility of making repairs may help reduce your liability or provide another source of settlement funds. Good indemnification clauses in your lease can be invaluable.
4. If you are sued, attempt to convince the plaintiff to waive any and all claims he may have against you and to release other restaurant locations if you have multiple locations.
5. Petition your local legislative representative. Several bills will be introduced this session and need your support as past efforts to change the law have failed. While we expect at least one bill to survive, its ultimate success depends on active support from business owners such as you.