Public Accommodations and the Americans with Disabilities Act

1. Public Accommodations and the Americans with Disabilities Act Howard T. Boyd, III Jeffrey D. Kessler Sher Garner Cahill Richter Klein & Hilbert, L.L.C.

2. Public Accommodations and the ADA • Title III of the Americans with Disabilities Act prohibits discrimination on the basis of disability in places of “public accommodation” • General rule: “ No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates any place of public accommodation. Source: 42 U.S.C. §12182(a)

3. Public Accommodations and the ADA • Overview • Legal standards • What constitutes “discrimination”? • What’s a “public accommodation”? • Title III- new frontiers • Standing issues • Accessibility requirements and regulations • In the news • Litigation prevention

4. Public Accommodations and the ADA • What constitutes discrimination under Title III? • “Eligibility criteria” that screen out, or tend to screen out disabled individuals from fully and equally enjoying the service/ facilities; • Failure to make reasonable modifications in policies/ practices/ procedures; • Failure to provide auxiliary aids/ services; and • Failure to remove architectural and communication barriers that are structural in nature in existing facilities and transportation barriers in vehicles. Source: 42 U.S.C. §12182(b)(2)(A)(i-iv).

5. Public Accommodations and the ADA • What’s a “public accommodation”? • Inns, hotels, motels, and other places of lodging • Exceptions: • No more than five rooms available for rent; and • Occupied by proprietor as his residence; i.e. bed and breakfast • Restaurants, bars, and establishments serving food and drink • Includes free-standing venues and those located within a hotel. • Auditoriums, convention centers, lecture halls • Gymnasiums, health spa, bowling alley, golf course, or “other place of exercise or recreation”. Source: 42 U.S.C. 12181(7)(A)

6. Public Accommodations and the ADA • Other issues regarding the scope of a “public accommodation”: company websites, extraterritorial reach of ADA • Recent litigation has held that Title III applies to websites which pertain directly to a covered public accommodation.

7. Public Accommodations and the ADA • Websites as Public Accommodation • General rule: “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates any place of public accommodation.” Source: 42 U.S.C. §12182(a)

8. Public Accommodations and the ADA • Websites as Public Accommodation • Nothing in the general rule or the definition of public accommodation expressly limits its meaning to actual physical structures. • Recent jurisprudence has held that websites, to the extent that they provide privileges or services in connection with a physical structure that constitutes a covered “public accommodation,” are also covered.

9. Public Accommodations and the ADA • Websites as Public Accommodation • Target v. National Federation of the Blind: Blind customer and advocacy group sue Target, alleging that website was inaccessible to the blind, and thus violated Title III.

10. Public Accommodations and the ADA • Websites as Public Accommodation • Target v. National Federation of the Blind: Motion to dismiss denied. Court emphasizes that “many of the benefits and privileges of the website are services of the Target stores. . . The challenged service here is heavily integrated with the brick-and-mortar stores and operates in many way as a gateway to the stores.” Source: 452 F. Supp. 2d 946, 954-55 (N.D. Cal. 2006).

11. Public Accommodations and the ADA • Websites as Public Accommodation • Target v. National Federation of the Blind: Class recently certified consisting of all legally-blind individuals who attempted to access Target.com and were denied access to the enjoyment of goods/ services in Target stores as a result. • Plaintiffs alleged that they were deterred from going to stores after being unable to locate information on the website. • Target argues that it has reasonably accommodated blind individuals by providing in-store assistance and toll-free hotlines. These defenses go to the merits, not class certification. Source: No. 3:06-01802 (N.D. Cal. Oct. 2, 2002).

12. Public Accommodations and the ADA • Websites as Public Accommodation: What It Means for You and Your Clients: • Hotel and motel websites are likely to be covered under the rationale of Target. • Means of making websites blind-accessible: use of assistive technologies • Integrate website with “screen reader” software, which provides hidden alternative text which can be vocalized by software; • Software conversion of text/ graphics to audio signals; • Magnification software; • Toll-free telephone number.

13. Public Accommodations and the ADA • Foreign-flagged cruise ships? • Spector v. Norwegian Cruise Line, Inc. • Federal statutes such as ADA may regulate foreign ships in US waters • But extent of regulation does not extend to “internal affairs” Source: 545 U.S. 119 (2005)

14. Public Accommodations and the ADA • Foreign-flagged cruise ships? • Spector v. Norwegian Cruise Line, Inc. • “Internal affairs” do not mean policies/ procedures directed primarily at passengers- ex. Pricing policy, evacuation drills • “Internal affairs” means “permanent and significant” structural modifications • Effectively makes foreign ships subject to US law even when in international waters because they require compliance as to “permanent and significant” structural changes • New regulations proposed, not finalized: 49 C.F.R. Part 39

15. Public Accommodations and the ADA • Standing to sue • Individuals • Associational standing • Organizational standing • Prudential considerations

16. Public Accommodations and the ADA • Individual standing: Who can sue? • Article III considerations: actual case or controversy. Is future injury “concrete and particularized”? • Factors to consider: • Plaintiff’s proximity to place of public accommodation • Past patronage • Definitiveness of plaintiff’s intention to return • Plaintiff’s frequency of travel near defendant. • Source: Access 4 All, Inc. v. 539 Absecon Blvd., LLC, 2006 WL 1804578 (D. N.J. June 26, 2006); Access 4 All, Inc. v. Wintergreen Comm. Partnership, Ltd., 2005 WL 2989307 (N.D. Tex. Nov. 7,2005).

17. Public Accommodations and the ADA • Individual standing considerations • Physical proximity of plaintiff is less important in context of hotels than restaurants/ retail stores. • Plaintiff not required to engage in “futile gesture”. OK to allege that plaintiff has actual knowledge of barriers and but for those barriers, plaintiff would patronize the facility. • Because injury is part of the hotel structure, the injury is always “actual and imminent,” until hotel becomes ADA-compliant. Source: Access 4 All, Inc. v. 539 Absecon Blvd., LLC, 2006 WL 1804578 (D. N.J. June 26, 2006); Clark v. McDonald’s Corp., 213 F.R.D. 198, 229 (D.N.J. 2003); Pickern v. Holiday Quality Foods, Inc., 293 F.3d 113, 118 (9th Cir. 2002); Access 4 All, Inc. v. Om Management, LLC., 2007 WL 1455991 (S.D. Ohio May 15, 2007).

18. Public Accommodations and the ADA • Factors to consider in establishing plaintiff’s intention to return: • Family/ business ties to area • Made reservations prior to filing suit • Unique features/ attractions at hotel • Example: Jean-Georges restaurant at Trump Tower Source: Access 4 All, Inc. v. Trump Int’l Hotel and Tower Condominium, 458 F.Supp.2d 160 (S.D.N.Y. 2006).

19. Public Accommodations and the ADA • Associational standing • Advocacy groups may have standing to sue under Title III even where they have not suffered an injury-in-fact. • Members otherwise have standing to sue in their own right • Interests it seeks to protect are germane to organizational purpose • Neither the claim asserted nor relief requested requires participation in suit by individual members of organization. • Declaratory and injunctive relief generally do not require participation by individual members, but damages claims do. Because Title III limits remedies to injunctive/ declaratory relief, associations normally also have standing to sue. • Subject to prudential limitations

20. Public Accommodations and the ADA • Organizational standing • Requires organization to have “a personal stake in the outcome”. • Not sufficient merely to have ideological or abstract social interest. • Often unnecessary because organizations can normally demonstrate associational standing.

21. Public Accommodations and the ADA • Nuts and Bolts: Structural Requirements • Two sets of standards: pre-1993 and post-1993 structures. • Older facilities must remove barriers to accessibility only to the extent that removal is “readily achievable” – defined as “easily accomplishable and able to be carried out without much difficulty or expense.” • New facilities must be “readily accessible and usable by individuals with disabilities.” Source: 42 U.S.C. §§12183(a)(1); 12183(b)(2)(A)(iv); 12181(9).

22. Public Accommodations and the ADA • Nuts and Bolts: Structural Requirements • Structural requirements set forth in 28 CFR Part 36 • Older facilities: removal of structural barriers set forth in 28 CFR Part 36.304. • Examples include: installing ramps, curb cuts in sidewalks, reposition furniture/ phones, widen doors, grab bars in toilet stalls, designated parking spots Source: 28 CFR Part 36.304

23. Public Accommodations and the ADA • Nuts and Bolts: Structural Requirements • Prioritization for older facilities • Access from public sidewalks, parking, or public transportation • Access to areas where goods/ services made available to public- i.e. guest rooms, hallway, lobby • Restrooms • Any other necessary measures Source: 28 CFR Part 36.304(c)

24. Public Accommodations and the ADA • Nuts and Bolts: Structural Requirements • “Readily achievable” modification • Plaintiff has initial burden to show barrier removal is readily achievable under the circumstances • Considerations: nature and cost of modification, defendant’s financial resources Source: 42 U.S.C. §12181(9)

25. Public Accommodations and the ADA • Nuts and Bolts: Structural Requirements • “Readily achievable” modification • If plaintiff makes prima facie showing of discrimination, burden shifts to defendant to show that barrier removal is not readily achievable • Plaintiff fails to meet burden if they fail to provide: • Precise cost estimates regarding proposed modification; and • Defendant’s gross profits Source: Disabled Patriots of America, Inc. v. Odco Investments, Ltd., No. 3:04-7399, 2006 WL 78725 (N.D. Ohio March 27, 2006); Alford v. City of Cannon Beach, No. 00-303, 2002 U.S. Dist. LEXIS 2257 (D. Ore. Jan. 15, 2002).

26. Public Accommodations and the ADA • Nuts and Bolts: Structural Requirements • New construction: governed by 28 C.F.R. Part 36.406 and Appendix A to Part 36 • Appendix A- Standards for Accessible Design Source: 28 C.F.R. Part 36, Appendix A

27. Public Accommodations and the ADA • Nuts and Bolts: Structural Requirements • Standards for Accessible Design • Chapter 4- all buildings required to comply • Chapter 9- specific requirements pertaining to “accessible transient lodging” Source: 28 C.F.R. Part 36, Appendix A

28. Public Accommodations and the ADA • Nuts and Bolts: Structural Requirements • Lodging-specific regulations • Ratios for number of accessible rooms, roll-in showers • Provisions for auxiliary visual alarms, maneuverability space within bedrooms • Accessibility to other rooms within unit: kitchen, dining area, balcony Source: 28 C.F.R. Part 36, Appendix A, Chapter 9.1-9.5.3

29. THE OTHER CIVIL RIGHTS MOVEMENT

30. IN THE NEWS • Friday, January 14, 2005 • Property owners sued for alleged ADA violations • Atlanta Business Chronicle - by Justin Rubner Staff writer • Print Article • Email Article • Reprints • RSS Feeds • Add to Del.icio.us • Digg This • Related News • Access Now ... or lawsuit later [Birmingham] • Burgher Realty working on mall stores [Buffalo] • Dave & Buster's posts smaller 2Q loss [Phoenix] • Arizona's first Dave & Buster's to open with benefit for Waste Not [Phoenix] • New ICA, ex-builder tangle over construction [Boston] • If you're in a business that's open to the public and haven't heard of the Disabled Patriots of America Inc., just wait: It may only be a matter of time. • The group, which describes itself as a nonprofit made up of people with disabilities, has over the past two years sued hundreds of businesses nationwide for allegedly violating the Americans with Disabilities Act. • In Georgia alone, Disabled Patriots filed at least 61 federal lawsuits in 2003 and 2004 against the owners of hotels, restaurants, shopping centers and other properties, including Phipps Plaza, Embassy Suites Hotel at the Galleria, Doubletree Suites, the JW Marriott in Buckhead, Dave & Buster's Midway Bar, a Hooters and several McDonald's. • Nearly all the lawsuits allege that parking, building access, signs and other accommodations were "discriminatory" to handicapped people and not in tune with Title III of the 1990 act, a complex list of do's and don'ts for businesses that provide access to the public. • The group is based in Lake Worth, Fla., according to a filing with Florida's Secretary of State office, and lists Maria Gallagher of Lake Worth as the registered agent. In October 2002, Fort Lauderdale-based law firm Whitelock & Associates PA applied for not-for-profit status for the organization. • Attorneys who have represented some of the businesses being sued say two law firms in Florida have handled most or all of Disabled Patriot's suits: Fort Lauderdale-based James Johnstone and Larry Fuller of Miami-based Fuller, Fuller and Associates PA. • Defense attorney Mary Ann Oakley of Atlanta-based Holland & Knight LLP calls the operation a "lawyer mill." Typically, she said, a disabled person would be dispatched to businesses with the aim of finding problems. Once an alleged problem was found, she said, Fuller or Johnstone would file a lawsuit -- many times without notifying the business first. • Oakley, who needs a walker to get around, has represented the Marriott Courtyard in Atlanta and McDonald's Corp. in several Disabled Patriots suits. She said the Disabled Patriots' aim is to settle out of court with defendants for "lawyer fees." None of the cases she is aware of ever made it to court in Georgia. • "It may cost more to win it than clients would be willing to pay," Oakley said. "This is what these attorneys are hoping for." • Nonetheless, Oakley said, she is "dying to take (Fuller's) deposition." • Fuller did not return repeated phone calls made over several days seeking comment. Johnstone, who sued Hooters of Cumberland Inc. in 2004 and other businesses in Georgia, would not comment on Disabled Patriots. • "If the defense lawyers want to dump on me, that's fine -- I'll just see them in court," Johnstone said. • Defense lawyer Brian Blair of the Orlando, Fla., office of Greenberg Traurig LLP said he has represented businesses in about 50 cases brought by Fuller and Johnstone. In addition to Disabled Patriots of America, other groups Fuller and Johnstone have represented include Access for the Disabled Inc., Access Now Inc., Access 4 All Inc. and Access for America Inc. • Blair said Access for the Disabled filed at least 486 suits in Florida between 2001 and 2004. Access 4 All filed at least 338 suits in Florida and Georgia between 2000 and 2004, he said, with at least 19 of those in Georgia. And Access for America has filed at least two in Georgia, according to court records.

32. FREE OUR PEOPLE MARCH, IN 2004 THE MOVEMENT’S ON THE MOVE

33. WHO ARE THESE FOLKS? • Not for Profit Charitable Organizations Whose Purpose is to Improve Disabled Access to Public Accommodations (Such as Gyms, Shopping Centers, Theaters, Restaurants, Hotels and even Cruise Ships) Access Now (Florida) Access 4 All Access for the Disabled

34. Welcome   to Have YOU ever said that?What CAN you do about it?

35. BURNING UP THE DOCKET • Federal Lawsuits – Pacer • As of October 2007 – Major Non-Profit Groups • 256 Cases: Disabled Patriots of America • 506 Cases: Access 4 All • 621 Cases: Access for the Disabled

36. THE NEW ORLEANS EXAMPLE“ACCESS NOW” (EDLA) • Gregory, et al v. Provincial Motels, 2:02-cv-03654-ML • Fendley, et al v. Hilton Riverside LLC, et al, 2:02-cv-03655-LMA • Fendley, et al v. Audubon Nature Inst., 2:02-cv-03656-MLCF • Gregory, et al v. Le Richelieu Corp., 2:03-cv-00764-ML • Fendley, et al v. Hyatt Corporation, 2:03-cv-02413-CJB • Gregory, et al v. Melrose Group, LLC, 2:03-cv-02414-GTP

37. METHODS • Surprise – no advance warning • Targeted Industries • One or two testers • Systematic Review of Your Facilities for Accessibility Issues

38. Check in counter height Displays that act as protruding objects Accessible seating (including the pool bar) Baths and toilets Adequate Clearances (halls, stalls, floor plan) Faucets that require grasping or twisting of the wrist Exposed pipes under sinks Bars, desks, or counters that are too high Lack of Braille/accessibility signage Lack of wheelchair ramps Wheelchair ramps that are too high WHAT ARE THEY CHECKING, SPECIFICALLY?

39. LIABILITY EXPOSURE • $ IT’S EXPENSIVE $ • Once You’ve Been Sued, You’ve Already Lost

40. ADA REMEDIES • INJUNCTIVE RELIEF • restraining orders • modifications of policies • shut down • make the facility accessible • and any equitable relief the court considers appropriate

41. Private citizens can sue Attorney’s fees Civil Penalties up to $50,000, for first time offenders up to $100,000 for subsequent violations Injunctive relief ADA REMEDIES

42. AVOID THE PITFALLS • New Construction • Deal with these issues on the front end! • Consult with a qualified architect, and ask them to make sure your building complies with the ADA Public Accommodation Rules. It’s less expensive to fix these problems on the front end.

43. For existing buildings, consider hiring an architect to perform an internal audit

44. Keep Your Ear to the Ground! Take Customer Complaints Seriously Don’t Ignore the Problem