Expert Opinion: Defending Lawsuits under Title III of the ADA
Title III of the Americans with Disabilities Act ensures that individuals with disabilities are not discriminated against with respect to the actions and activities of owners or operators of places of public accommodation such as shopping centers and strip malls, restaurants, physicians’ offices, zoos, amusement parks, museums, theaters, convention centers, arenas and stadiums.
Historically, Title III lawsuits brought by individuals or public advocacy groups have focused on physical or access-related issues with respect to places of accommodation — issues that are commonly referred to as architectural barriers. Examples of such architectural barriers include alleged problems or issues with or arising from: parking spaces; curb cuts; ramps; heights of bar and restroom counters; width of bathroom stalls; doors and doorways, including hardware; signage, seating and dining surfaces; and pathways and landings from parking spaces to buildings.
Pursuant to the ADA, the Department of Justice has published regulations to implement Title III, i.e., the ADA Accessibility Guidelines, which specifically address such items. These are often referred to as simply ADAAG.
New Type of Lawsuits
In the last several years, a new wave of ADA lawsuits has literally exploded on to the scene. These are claims against owners and operators of websites, alleging that these websites are not accessible to the legally blind or visually impaired. There has been a sharp rise in the number of such filed cases in 2017 and, thus far, in 2018.
In the one known such case to actually go to trial, namely Gil v. Winn-Dixie Stores, Inc., the United States District Court for the Southern District of Florida found that Winn-Dixie’s website violated the visually-impaired plaintiff’s rights under Title III in that the vast majority of the search tabs, together with the search box, on the company’s website did not function with screen reader software designed for individuals with visual impairments.
The landscape with respect to ADA lawsuits may, however, be changing rather significantly. In February of this year, the United States House of Representatives passed the ADA Education and Reform Act of 2017. The bill is currently before the Senate. While it has a number of different aspects to it, the most pertinent provisions of this proposed law are as follows:
1. The requirement of a detailed pre-suit notice to the owner or operator of a place of public accommodation, prior to filing a complaint in court;
2. Sixty days for the owner or operator to respond as to how he or she will address the alleged violations;
3. Another 60 days for that owner or operator to correct the alleged violations or make substantial progress in making such corrections.
In effect, the new bill would put a minimum 120-day freeze on the ability to file a lawsuit under Title III. Many — both those opposed to and those supporting this bill — believe that the proposed amendment to the ADA will drastically reduce the number of such lawsuits.
The best course of action for owners and operators of places of public accommodation such as shopping malls as well as those who own and operate websites is to be proactive on the front end. Do not wait until a lawsuit has been filed because, at that point, the focus will be as much on the attorney’s fee claim of the plaintiff’s lawyer as it will be on making necessary changes to alleged architectural barriers on the property or modifications to websites. Simply put, hiring and investing in an ADA expert prior to being sued, whether it is with respect to physical or access issues on the property or updating the website and then making the changes recommended by the expert, while admittedly not inexpensive in many or even perhaps most circumstances, may turn out to be much more cost effective than waiting to be sued and then having to hire a defense expert, pay for an attorney to defend the lawsuit, pay the plaintiff’s attorney his or her fee if and when the case settles and pay for the costs associated with becoming ADA-compliant anyhow.
Indeed, once a lawsuit is filed, the issue of the plaintiff’s attorney’s fees often becomes, for lack of a better term, the tail wagging the proverbial dog.
Businesses subject to Title III of the ADA would be wise to remember the words that Benjamin Franklin uttered over 200 years ago — “an ounce of prevention is worth a pound of cure.” That statement could not be more appropriate in the context of claims or potential claims under Title III. Take the necessary steps and spend the money now to minimize the possibility of a lawsuit that may very well cause one to spend more money and to take even more steps down the road.
Scott Topolski is a member of the litigation department in the Boca Raton (Florida) office of Cole Schotz.
Food Lion in $168 million store investment
Food Lion’s extensive remodeling effort continues.
Food Lion on August 29 will unveil a new and improved shopping experience for customers in the greater Norfolk, Va., market. The company made a $168 million capital investment in its 105 stores in the area this year. The initiative includes store remodeling, hiring 4,000 additional associates and giving back to local communities.
With the completion of Norfolk market, Food Lion has remodeled 649 of its 1,030 stores in the last four years. The retailer said it will continue to make enhancements to create a better shopping experience for customers across all stores and remodel additional stores in other markets.
Food Lion’s investment in the Norfolk area includes:
• Fully remodeled stores featuring new signage and groupings of like products, to make it easier to locate items faster;
• A more efficient checkout process, making it easier to get in and out;
• Improved quality and freshness of products throughout the store;
• Low prices on thousands of items across all departments;
• Expanded variety and assortment across all departments relevant to our customers in each store, such as more local produce in our “Local Goodness” section, an expanded variety of craft beer, limited reserve wines, and more local, natural, organic and gluten-free items;
Twelve of the 105 stores also feature walk-in garden coolers designed to keep produce fresher longer. Additionally, six stores include expanded deli departments that offer items such as handmade artisan pizza and premium coffee.
“We’ve created a new grocery shopping experience through the significant investments in our stores, customers, associates and communities,” said Meg Ham, president, Food Lion. “From our expanded variety and product assortment, newly reorganized stores, new signage to a more efficient check-out experience, every change we’ve made will make it easier for our customers to find fresh, quality products at affordable prices every day.”
As part of its grand re-opening celebrations, Food Lion partnering with the Food Bank of Southeastern Virginia and the Eastern Shore and the Virginia Peninsula Food Bank to purchase two mobile pantries to help feed families in need in remote locations. The donations are part of Food Lion’s commitment to provide 500 million meals to individuals and families in need by the end of 2020 through Food Lion Feeds.
Food Lion, based in Salisbury, N.C., operates more than 1,000 stores in 10 Southeastern and Mid-Atlantic states and employs more than 63,000 associates. It is part of Delhaize America.
First Look: Apple, Kyoto, Japan
Apple extends its retail footprint in Japan with the opening of its first store in one the country’s most historic cities.
Apple’s new store in Kyoto, a cultural and technological hub for Japan, is located on Shijō Dori, which has served as the city’s main shopping hub since the 1600s. It is surrounded by many of Kyoto’s famous shrines and temples.
The architecture for the two-level store takes inspiration from local design and materials, with the upper levels clad in a translucent envelope inspired by Japanese lanterns. The use of lightweight timber frame and special paper on the upper facade also draw reference to Japan’s traditional houses.
The building is centered around a multi-level atrium that is also where the store will offer free “Today at Apple” sessions — amid a huge freestanding video wall backdrop — daily on photography, music, coding and more.
Japan was home to Apple’s first store outside the U.S., opening in Tokyo in 2003. The company is in the midst of a retail expansion in the country, with plans to open several new stores, and remodeling many others.