ADA law was meant to protect the interests of the disabled, not handicap businesses

Nation's Restaurant News, April 17, 2000 by Bill Carlino

Question: What do you do when you find three lawyers buried up to their necks in sand?

Answer: Get another foot of sand.

No doubt many restaurateurs and small-business operators would be more than tempted to prescribe that drastic solution if only to eradicate the groundswell of litigious insanity surrounding the decade-old Americans with Disabilities Act.

Apparently, in addition to filing mass tobacco, asbestos and shareholder-related lawsuits while reaping huge contingency fees, some lawyers now are slapping thousands of unsuspecting restaurateurs and other businessmen with a slew of lawsuits charging a lack of compliance with the federal ADA regulations.

In California, for example, a single plaintiff in a single day slapped some 20 businesses on one stretch of highway with lawsuits charging noncompliance with the ADA.

In another round of lawsuits, one restaurant owner was sued not once, but twice because the bathroom door on his 54-year-old building was found to be one inch too narrow.

Thus far his costs as a result of the litigation exceed $21,000, with just $8,000 of that earmarked for remodeling, while the remainder -- hardly a surprise-- went toward legal fees.

Others who have been sued were not so fortunate. Unable to meet exorbitant legal and remodeling costs, many were forced to shut down.

Illustrating the absurdity of this scenario, a wheelchair-bound couple, owners of a wheelchair business, were sued because they didn't have designated handicapped parking spots. Who did the legal geniuses who initiated that suit think constituted the majority of this business's customer base?

The plaintiff lawyers claim they are serving the public interest by forcing business owners to come into ADA compliance. To many current defendants of pending ADA suits, that altruistic pledge probably sounds as sincere as someone who claims to read Playboy or Penthouse simply for the articles.

But protection from this litigious climate may be forthcoming.

Prompted by a flood of ADA-related lawsuits in Florida, two of the state's Republican congressmen, Clay Shaw Jr. and Mark Foley, have introduced the ADA Notification Act, or House Resolution 3590. H.R. 3590 ultimately would temper the rash of ADA lawsuits by giving business owners 90 days to bring their facilities into compliance before they could be sued.

The bill currently is awaiting committee action, and its future at this stage is uncertain -- especially given that many lawmakers may view tinkering with the ADA as politically incorrect. But it's a breath of fresh air, not to mention a rare instance of common sense in an era where lawsuits seem to pop up faster than dot.com start-ups.

President George Bush signed the ADA into law in 1990. It was a sweeping reform intended to make buildings and workplaces accessible to the disabled. One of the provisions mandated that places of public accommodation, like restaurants and retail stores, remove barriers wherever "readily achievable," or reasonably easy to accomplish.

For all new building construction after Jan. 26, 1992, owners were required to make their properties "readily accessible" regardless of cost. Those changes included such now-common sights as wheelchair ramps, an increased number of handicapped parking spaces and at least one wider-than-normal rest-room stall with handrails.

However, operators soon ran into trouble because of discrepancies in state and federal laws intended to ensure access for the disabled. Unsuspecting operators and business owners who were in compliance on a state level discovered usually by way of a lawsuit--that they were not in compliance on the federal level.

H.R. 3590 would give businessmen a three-month grace period to bring their facilities up to ADA federal compliance before they would be forced into court. So it would not protect the irresponsible operator who chose to ignore ADA mandates, nor prevent plaintiffs from meting out punishment to the willfully uncooperative. But it would build in a buffer allowing those who are surprised by their noncompliance to address it immediately.

Of course, there are critics of the measure who would be quick to argue that operators and business people have had nearly a decade to bring their restaurants or businesses into compliance.

But while that may be true, people can't fix what they don't know is broken. A three-month grace period would give owners enough time to iron out any code discrepancies and bring their facilities into compliance.

No question, the spirit of the law is laudable. But right now the people who are applauding the loudest are the unintended beneficiaries -- the clever attorneys with politically correct arguments who have found access to lots of money in the patchwork of federal and state laws meant to open doors for the disabled.