Are Hidden Title III Claims Lurking in Your Business?

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

With the extraordinary volume of Americans with Disabilities (ADA) Title III claims clogging the courts, and an increase in the number of plaintiffs’ lawyers litigating ADA issues, we can expect to see another flood of Title III cases in 2016. After defending countless “drive-by” lawsuits through the years, we have learned that, for the most part, these suits lack creativity in identifying barriers presented by public accommodations. Put another way, the same types of barriers are routinely alleged in complaints. While few Title III plaintiffs visit retail stores with tape measure in hand, nearly anyone with minimal training can detect a host of technical violations very quickly. The following is a breakdown of the most commonly alleged violations that we see in the disability access cases involving the retailers that we defend.

Parking Lots

The parking lot violation is one of the easiest violations to spot. A potential plaintiff does not even need to leave the comfort of his or her car to find one. The Title III violations that we commonly see in parking lots include a lack of tow-away signage, an insufficient number of accessible or van-accessible parking spots, and a lack of compliant access aisles alongside accessible parking spaces. Unfortunately, a plaintiff who suspects a Title III parking lot violation may have an incentive to pay a visit to the interior of the store served by that parking lot to see what other violations can be identified. Some plaintiffs’ lawyers have fashioned entire nationwide class actions based on finding only parking lot violations in multiple stores owned or operated by the same retailer.

Public Restrooms

Plaintiffs often target access issues involving public restrooms, because they present many opportunities to find a technical violation of Title III. Some of the most common restroom issues involve the height of accessories, such as paper towel and soap dispensers, mirrors, and the toilet paper holders and toilet seat cover dispensers in accessible stalls. Other common compliance deficiencies include unwrapped pipes under sinks and portable trash cans misplaced in areas that impair access to wheelchair users. With some exceptions, many of these technical violations are easy to fix, inexpensive, and require minimal training for store and facilities managers to recognize and remediate.  

Fitting Rooms and Service Counters

Fitting rooms are also rife with Title III technical violations. Some of the most common accessibility issues we see in fitting rooms concern the height of clothing hooks, the turning space radius, and the dimensions of benches. Elsewhere in the store, cash wraps and sales and service counters remain oft-cited barriers—particularly in California, where the law requires a lower sales counter (34 inches high) than is required under the federal law standard (36 inches high) that most states have adopted. Many retail stores feature sales counters that do not provide an accessible lowered surface and, in some locations, fail to provide countertops that are at least 36 inches in length. Store owners and operators should pay particular attention to service or other counters that may be used, even on a limited basis, for sales or return transactions.

Point-of-Sale Devices

Point-of-sale devices with touch screens have recently become a hot issue, especially in Title III class action litigation. Luckily, with the recent upgrade to EMV chip card terminals, many retailers are abandoning the old, inaccessible point-of-sale devices in favor of new, compliant designs with tactile buttons that allow visually impaired customers to enter their personal identification numbers. Retailers that are still using point-of-sale devices should ensure that all machines meet the updated tactile and privacy requirements.

Aisle Widths

The nature of retail business often means that stores are stocked with merchandise on the sales floor, often at the expense of aisle widths. National retailers may be surprised to learn that California’s stricter accessibility rules for aisles with merchandise on two sides require 44 inches of width instead of the 36 inches required in the rest of the country. So, retailers using a general plan for all of their stores may find that their California stores are out of compliance.

Not only must aisles be constructed and designed to provide the required width, they must also be maintained and regularly cleared of merchandise that customers or personnel might have temporarily left there. On many occasions, aisle-width violations have been the sole basis for Title III lawsuits and have even provided the basis for class action litigation.

But there is good news! By doing a quick scan of the public portions of your store with just these common barriers in mind, you may be able to protect your business from a Title III lawsuit.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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