CASWELL BELL & HILLISON LLP
FRESNO, CALIFORNIA

DEFENDING A DENIAL-OF-ACCESS CLAIM

Under the Americans with Disabilities Act, it is common for individuals to sue stores, restaurants, and other public establishments, alleging the denial of equal access to the facility

To prevail in an ADA denial-of-access lawsuit, a plaintiff must prove that:  (1) plaintiff is disabled, (2) the business is a place of public accommodation; (3) plaintiff was denied full and equal treatment because of her disability; (4) defendants’ facility has an architectural barrier; and (5) it is ‘readily achievable’ for the architectural barrier to be removed. 

For purposes of the ADA, discrimination includes the failure to remove “architectural barriers” in existing facilities where such removal is “readily achievable.”

California law does not require the alteration of structures that pre-date the effective date of the Americans with Disabilities Act.  As described by one court, “Title 24 [the California Building Code] is more lenient that the ADA.  It requires compliance with the disabled access standards only if a public accommodation is newly constructed or structurally altered.  Buildings existing at the time of Title 24’s enactment in 1982 are exempt from compliance unless alterations, structural repairs, or additions are made to such buildings or facilities.”

The requirements of the federal Americans with Disabilities Act are more rigorous than the requirements of state law.  In contrast to the California Building Code (see Title 24, Cal. Code of Regs., section 1134B), the Americans with Disabilities Act imposes affirmative obligations to provide access to persons with disabilities.

“The ADA has no such triggering requirement.  It imposes an affirmative duty on all existing facilities to remove architectural barriers if the removal is readily achievable.” Grove v. De La Cruz, 407 F.Supp.2d 1126, 1130 (C.D. Cal 2005) (case involved Billy J’s Family Restaurant located in Fontana, California).

Who Is Liable?  Liability is imposed upon “any person who owns, leases (or leases to), or operates a place of public accommodation that discriminates against an individual on the basis of disability.  The federal regulations state that, “A public accommodation shall remove architectural barriers in existing facilities, including communication barriers that are structural in nature, where such removal is readily achievable, i.e., easily accomplishable and able to be carried out without much difficulty or expense.”

As set forth in the regulations, “Public accommodations must remove architectural barriers and communication barriers that are structural in nature in existing facilities when it is readily achievable to do so.  Architectural barriers are physical elements of a facility that impede access by people with disabilities.  These barriers include more than obvious impediments, such as steps and curbs that prevent access by people who use wheelchairs.  Determining if barrier removal is readily achievable is necessarily a case-by-case judgment.”  Americans with Disabilies Act Accessibility Guidelines (28 CF.R.) §36.304.

“Once plaintiff establishes that the requested accommodation is reasonable in a general sense, the burden shifts to the defendant to prove that the modification is unreasonable under the circumstances, that such would fundamentally alter the nature of the public accommodation or otherwise work an undue hardship on the entity.”  Colorado Cross Disability Coalition v. Hermanson Family Limited Partnership, 264 F.3d. 999 (10th Cir. 2001) (case involved the Larimer Square, an historic block of shops and restaurants located in downtown Denver, Colorado).

The ADA’s prohibitions against discrimination apply to any person who owns, leases (or leases to), or operates a place of public accommodation.  As a result, both the landlord and the tenant have full responsibility for complying with all ADA accessibility requirements applicable to that place of public accommodation.  Examples of readily-achievable steps to remove barriers include the widening of doors and the installation of grab bars in toilet stalls.

The case law is not favorable to businesses.  An entire industry has developed to provide support for lawsuits alleging access violations under the ADA.  In one case, a witness testified “as an expert in the limited area of barrier identification and the cost of remediation.”  This witness held a contractor’s license, and called himself “a full-time ADA consultant.”  Parr v. L & L Drive-Inn Restaurant, 96 F.Supp. 2d 1065, 1072 (D. Hawaii 2000).  To determine whether the removal of a barrier in an existing structure is “reasonable,” the plaintiff is given wide latitude to evaluate the financial resources of the defendant.

Remedies.  The federal law provides for injunctive relief and an award of attorneys’ fees and costs to the prevailing plaintiff.  The ADA does not impose any requirements that state or local governments investigate existing structures for access conditions.  Instead, compliance is based on private lawsuits.

California law piggybacks with the ADA, but grants additional remedies to a plaintiff.  The Unruh Civil Rights Act provides statutory damages “up to a maximum of three times the amount of actual damage but in no case less than $4,000” for each instance of discrimination.  Civil Code §52(a).

“The California legislature, by incorporating the full expanse of the ADA into the Unruh Act and the Disabled Persons Act, also incorporated these standards.  Intentional discrimination is no longer a prerequisite to liability under these statutes.”  Pickern v. Best Western Timber Cove Lodge Marina Resort, 2002 Westlaw 202442 (E.D. Cal. 2002) (case involved the Best Western Timber Cove Lodge in Lake Tahoe).

The statute is skewed in favor of plaintiffs, because it provides for an award of attorneys’ fees to the prevailing party.  However, a defendant will be the prevailing party only when the court finds that the plaintiff’s action was frivolous, unreasonable, or without foundation.

Conclusion.  Plaintiffs generally have the upper hand in these lawsuits.  In addition to the costs of defense and the costs of removing the “architectural barriers,” the business will be subject to damages and attorney’s fees, based on the lenient standards favoring plaintiffs and their attorneys.  In the majority of cases, the cost to provide modified access to the facility would be far less than the cost of defending the matter.

© Caswell Bell & Hillison LLP          Attorneys and Lawyers, Fresno, California