ADA Lawsuits on the Rise for Small Businesses

A recent Wall Street Journal article discussed the “growing number of disabled access lawsuits” that have appeared since a decision of the 11th Circuit Court of Appeals in the case of Joe Houston v. Marod Supermarkets, Inc. The Marod case gave its stamp of approval to disabled “testers” who spend their time visiting businesses and testing the businesses for compliance with the Americans with Disabilities Act.

Nolan Klein

Nolan Klein

In addition, the federal government has released detailed specifications for curb ramps, self-opening doors, and other structural amenities designed to accommodate persons with disabilities. Attorney Nolan Klein discusses the recent phenomenon and offers suggestions to small businesses.

There has reportedly been an increase of 55% in the filing of these disability lawsuits. Klein says the uptick is mostly attributable to the fact that the standards promulgated in 2010 have come into effect in 2012. Among these is the pool lift requirement, which is that any hotel or motel that maintains a swimming pool has to have a pool lift to allow a disabled person to enter and exit the pool.

The most common problem, in Klein’s opinion, is a lack of disabled parking spaces. The law requires a certain number of disabled slots based on the total number of spaces a business has and requires that the spaces be configured in a certain way and have compliant signage. Improperly configured bathrooms and lack of access ramps or aisles into a business are also very common problems.

Klein notes that small businesses don’t have in-house legal departments or sophisticated compliance officers, so small businesses are less likely to be aware of these requirements than big ones. Klein also explains that there is no notice requirement to any business that a lawsuit may be filed if the business does not comply. Congress has failed to require such notice, and Klein is not certain that such a requirement would be of much help.

Klein opines that most small business owners want to comply. His advice to small businesses is to go to the ADA Guidelines and figure out what is required.

Nolan Klein is a litigation attorney with an active practice in New York and Florida. Mr. Klein has won settlements and verdicts for his clients totaling tens of millions of dollars. Mr. Klein is regularly called upon by national news media, including CNN and Fox News, to provide legal commentary and analysis, and has been named a "Super Lawyer" by Law & Politics Magazine (an honor awarded to less than 5% of U.S. attorneys).  The Legal Broadcast Network is a featured network of the Sequence Media Group.