Recently, there has been a flood of ADA lawsuits against small businesses in the City of Berkeley. Berkeley has historically been overlooked by serial ADA plaintiffs, seeing only about a few cases each year. However, it seems like these serial ADA plaintiffs have turned their attention to the City, which should, at the very least, force all Berkeley public establishments to take notice of ADA issues.
Below are three basis tips that can help protect your restaurant or business from being subjected to these serial ADA lawsuits.
A Certified Access Specialist (“CASp”) inspection is the first line of defense that should be conducted on all properties that are used as a public accommodations. Public accommodations are any and all commercial or noncommercial entities that are open to and serve the general public. These include restaurants, clothing stores, record stores, bars, hotels, etc.
The CASp inspection not only provides a comprehensive report of any and all ADA issues within your business, it also provides a deterrent and defense to serial litigation. By obtaining a CASp inspection certificate, you are granted “Qualified Defendant” status, which offers you special protection in ADA lawsuits.
These protections include:
- 90 day stay of a lawsuit;
- Mandatory Early Evaluation Conference (“EEC”) within 35 days to potentially resolve the case;
- Plaintiffs need to provide the basis of an alleged violation 15 days prior to the EEC; and
- Minimum statutory damages may be reduced from $4,000 per occurrence to $1,000 per occurrence.
Many plaintiffs outright avoid filing suit against a restaurant or business that has been CASp inspected.
It is important to note that, while a CASp inspection is available to anyone, retaining the right CASp and obtaining an inspection through an attorney will grant further protection available to you and your lawyer.
The single most common issue alleged in serial ADA litigation is inaccessible seating, both inside and outside a restaurant. Ironically, it is the easiest to prevent and to fix.
The ADA requires that at least 5% of available seating be accessible, or at least 1 if less than 20 seats are provided. If outside seating is provided, then the same rule applies to all seating outside. If no outside seating is provided, then this rule does not apply.
Accessible tables must comply with specific dimensions to be considered compliant. An accessible table must have a surface height of no more than 34 inches, and no less than 28 inches above the floor. It must also have at least 27 inches of knee clearance.
While accessible tables can be more pricey than non-accessible tables, it will always be cheaper than defending an ADA lawsuit.
Kiosks and Sales Counters
Most, if not all, of the restaurants in Berkeley use self-service kiosks. Kiosks have significantly expanded in the City after UC Berkeley began using Snackpass, the online food delivery and pick up service tailored specifically for college students.
The ADA has a very specific set of rules for kiosks and self-service machines. A major issue often raised by serial litigants is the height of these devices. A kiosk is required to have a minimum height of 15 inches and a maximum height of 48 inches to the highest operable parts. These machines must be fully functional by an individual in a wheelchair.
This height rule is also applicable to sales counters. Another common basis for ADA lawsuits is the sales counter height. Sales counters must be under 36 inches high, and must have at least a clear 30 by 48 inch area in front of them for adequate wheelchair space.
These common issues are relatively easy fixes that can help avoid expensive lawsuits.
These Lawsuits are Defensible
ADA lawsuits can be daunting and hopeless. Plaintiffs often demand tens of thousands of dollars for issues that can be fixed for just a few hundred dollars. However, these lawsuits are preventable and, more importantly, defensible. There is a shifting tide in favor of business owners, and our firm obtained major victories dismissing entire cases against major serial ADA plaintiffs.
If you have already received letters or been served Complaints against your business, you should contact experienced ADA defense counsel to represent you.