Architectural Barriers ADA
Congress enacted the Americans with Disabilities Act (ADA) to broadly prohibit discrimination against individuals with disabilities, including discrimination caused by architectural design features that make it difficult or impossible for disabled patrons to use public accommodations. Under the statute, newly designed places of public accommodation, such as restaurants, hotels, and movie theaters, must be designed in a manner that allows persons in wheelchairs and other patrons with disabilities to use the amenities.
Despite its salutary purposes, the ADA unfortunately has created a “cottage industry” of lawsuits involving professional plaintiffs and unscrupulous lawyers who file scores of cases to secure quick settlements. This problem is particularly acute in California, where private plaintiffs can obtain not only injunctive relief – which is the only remedy available to private plaintiffs under the ADA itself – but also damages by asserting parallel claims under the California Unruh Civil Rights Act (“UCRA”), Cal. Civ. Code § 51(f) and the California Disabled Persons Act (“CDPA”), Cal. Civ. Code § 54(c).
This puts the small Mom and Pop shops in an odd position, because they never were told or given notice by any governmental entity that they were in violation of any laws.
First, several courts have found that it is the plaintiff’s burden to prove that removal of architectural barriers is readily achievable. To succeed on an ADA claim of discrimination on account of one’s disability due to an architectural barrier, the plaintiff must also prove that: (1) the existing facility at the defendant’s place of business presents an architectural barrier prohibited under the ADA, and (2) the removal of the barrier is readily achievable.
If the plaintiff satisfies this burden of proof, he has made out a prima facie case of discrimination, upon which the burden shifts to Defendant to present sufficient evidence to rebut such a showing. Plaintiff bears the initial burden of production to present evidence that a suggested method of barrier removal is readily achievable, i.e., can be accomplished easily and without much difficulty or expense.
If you are sued you should consult an attorney as soon as possible. If you Believe you have been discriminated against, you should give the owner an opportunity to remedy the problem (even though you may not be required to do so), before taking any legal action.