ADA law calls for 90-day compliance period

Nation's Restaurant News, April 10, 2000 by Robin Lee Allen

Federal legislation would modify strict disabilities act

WASHINGTON -- Seeking to stem a rash of costly lawsuits against restaurateurs, industry advocates are promoting federal legislation that would modify the stringent Americans with Disabilities Act by requiring a 90-day period for compliance before litigation could begin.

Thousands of small-business owners, including restaurateurs nationwide, have been sued for alleged violations of the 10-yearold ADA. Critics of the law have claimed that many if not most of the lawsuits have had little to do with accommodating the disabled and everything to do with greed.

The recently introduced ADA Notification Act, House Resolution 3590, would curtail such suits by giving business owners nearly three months to come into compliance before they could be sued.

"There have been thousands of such cases here," said Stephen A. Zolezzi, executive vice president of the San Diego County Food and Beverage Association and proponent of the notification measure. "There was one place where [lawyers] literally went down the block and issued a lawsuit against 14 businesses. In another area they filed 20 cases in one day. The whole purpose is to go in and make a settlement and make money. They couldn't care less if you make the accommodation. The ADA Notification Act would take the wind out of the sails of the attorneys who are pressing these lawsuits."

Lawyers initiating the suits claim they are serving the public interest by forcing business owners into compliance with the law. ADA was signed by President George Bush in July 1990. Title III of the law required existing public accommodations like restaurants to remove physical and communications barriers where such improvements are "readily achievable" without extraordinary difficulty or expense. In the case of major renovations or new buildings completed on or after Jan. 26, 1992, owners were required to make properties "readily accessible" to disabled people regardless of costs.

Operators involved in lawsuits have said a big problem is the discrepancy between state laws and the federal statute, which is enforced by the Justice Department. Those operators often believe they are in compliance with all laws because they are able to get local building or occupancy permits even when their properties may not be ADA compliant. Restaurateurs who have been sued contend that a notification period would keep such cases out of the courts and save everyone time and money.

"That would solve the problem," said Wayne Blackman, co-owner of T.D. Hays and Sunset Grill in Pacific Beach, Calif. Blackman was one of four restaurateurs on his street sued by a single plaintiff last November.

In Blackman's case the bathroom door was found to be an inch too narrow. Because his property was built in 1946 and he had been an occupant for 26 years, he thought he was in compliance. He had just settled the first case when another attorney filed a new suit with the same complaint. To avoid further lawsuits, Blackman now is remodeling his entire bathroom, expanding the door, raising the sink and moving the toilet farther out from the wall. All told, his costs are nearing $21,000, with $13,000 spent to resolve the lawsuits and $8,000 spent on construction.

"I consider it a nightmare," Blackman said. Noting that some properties have been forced to close for weeks or have been put out of business, he added, "Thank God we can afford it."

Wilma Callahan, whose building in Encinitas, Calif., houses a restaurant, was one of 20 owners sued in a sweep of businesses in her area. She claims that the plaintiff drove down the street and sued everyone whose handicapped parking signs were not evident. Her insurance company covered the $5,000 in costs. Noting that it took only 20 minutes to repaint the handicapped-parking symbol that had faded, she said she strongly supports a grace period to correct problems.

She said, "It's disgraceful that a law can be used to make hundreds of thousands of dollars."

A deluge of similar cases in Florida prompted two of that state's Republican congressmen, Mark Foley and Clay Shaw Jr., to introduce the ADA Notification Act. According to the congressmen, the Florida suits were filed on behalf of an organization called the Citizens Concerned about Disability Access, whose primary members appeared to be two lawyers initiating the suits and one of the attorney's disabled neighbors.

"The ADA is being used to enrich lawyers, instead of helping the disabled," Shaw said. "Our legislation returns common sense to the ADA by making equal access the goal, not frivolous lawsuits."