Small-business owners face a growing number of disabled-access lawsuits in the wake of a recent appeals-court ruling giving rise to disabled “testers,” as well as the release of detailed federal specifications for curb ramps, self-opening doors and other standards.
For the year through June 30, plaintiffs filed 1,939 lawsuits under a section of the federal disability law setting out accessibility requirements for businesses and other public places. That’s up nearly 55% from 1,254 over the year-earlier period, according to Washington, D.C.-based law firm Seyfarth Shaw LLP, which reviewed court records.
Many of the lawsuits originated in California, New York and Florida, and most end in quick settlements, often of less than $10,000. Last year, 2,719 such lawsuits were up 9% from 2,495 in 2012, according to the law firm’s latest count.
Among those sued last year was Dave Arbetter ’s Miami restaurant, Arbetter Hot Dogs, a 1,000-square-foot luncheonette that his family has owned and operated since the 1960s. In November, a disabled customer, Alan Rigerman, filed a lawsuit against the hot dog shop in U.S. District Court in Miami. Mr. Rigerman said he was “denied full, safe and equal access” because the 60-year-old building lacked fixed floor mats and accessible restrooms, among 28 other alleged violations, according to the complaint.
Arbetter Hot Dogs in Miami settled a disabled-access lawsuit at a cost of roughly $10,000 in renovations and $14,000 total in legal fees.
I’ve never been sued in my life, it was a complete shock,” said Mr. Arbetter, a 50-year-old Florida native who runs the business with his sister, Jill Arbetter.
Ronald E. Stern, a lawyer for Mr. Rigerman, the disabled plaintiff, said all businesses have a legal obligation to make their hotels and restaurants compliant. “You have to adhere to the law, and this is one of the very few practical laws that Congress enacted where you can see the benefit to the disabled,” said Mr. Stern. In addition to his lawsuit against the hot dog shop, Mr. Rigerman this year sued a gym as well as a hotel, court records show. Those lawsuits were combined, and are scheduled for trial next year, Mr. Stern said.
Mr. Rigerman, who walks with a cane, said the hot dog shop “needed to make some kind of a ramp for people with wheelchairs,” and needed “to have a rail someone can hold on to, to go up the stairs. I let my lawyer tell them” they should make the changes, he said.
The U.S. government also files lawsuits against businesses, among other enforcement measures. In August, for instance, the Justice Department proposed new rules that would require small movie theaters to provide closed captioning and audio descriptions of films.
However, federal disability laws were intended to empower private citizens to bring claims. A November 2013 decision by the Eleventh Circuit Court of Appeals in a case against Marod Supermarkets found that someone who isn’t necessarily a patron could be a “tester” of disabled-access compliance. That cleared the way for individual plaintiffs to bring dozens, even hundreds, of lawsuits against multiple businesses, as serial testers.
In the eyes of many advocates for the disabled, such lawsuits are a necessary tool to prod business owners, especially those who might be inclined to ignore letters asking for compliance with the federal requirements. Mr. Stern has handled 250 to 350 total federal disabled-access lawsuits in the past five years, mostly in South Florida. He says plaintiffs who pursue cases are “implementing their rights.”
The litigation upswing also follows the Justice Department’s release of a set of compliance standards for the 24-year-old federal disability law. Those standards, which came into force in March 2012, include detailed specifications for long-standing requirements, such as the allowable slope of a wheelchair ramp and the exact height of towel dispensers in accessible restrooms. They also introduced a new requirement for hotels with pools to provide a “pool lift” for disabled guests, which went into effect last year.
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