Business owners know that getting sued for failure to provide disabled access is expensive. Under both the Americans with Disabilities Act ("ADA") and California's disabled access law, if there is any violation of accessibility standards not only will you incur the cost of making repairs or remodeling, but you risk having to pay the plaintiff's attorneys' fees as well. Indeed, it is often the case that those fees are the largest single cost.

Generally, the American legal system requires each side to pay its own legal costs. The accessibility statues, however, provide for the recovery of fees in order to enable disabled persons who suffer discrimination to sue businesses to obtain access. Because individuals cannot obtain damages under the ADA, the fee provision gives attorneys incentive to take cases for disabled people who could not otherwise afford a lawyer. In theory, they are doing a public service: improving accessibility for all disabled people. Unfortunately, certain plaintiffs and their attorneys (or visa versa) have taken advantage of this public service exception to turn ADA enforcement into a profit making enterprise.

A small number of lawyers and disabled plaintiffs file hundreds of suits a year, using the same complaints, only changing the names of the businesses and sometimes the list of barriers encountered. Often, the business owner was not even aware there were accessibility problems until she was served with the complaint. Although it seems unfair, the accessibility statutes do not require that a business be made aware of a problem before it is sued because of it.

In the late 1990s, a small number of judges held that the ADA required a business to be given notice of the accessibility violations before it could be sued. The appellate courts, however, rejected that approach. Recently, a federal judge in Southern California came up with a new way to address this unfairness.

In Doran v. Del Taco, Inc., 373 F.Supp.2d 1028 (2005) Judge Taylor held that in order to receive an attorneys' fee award, a plaintiff must have given the business a clear warning and a reasonable opportunity to cure the violation before filing suit. The ADA permits the award of attorneys fees because they were necessarily incurred in order to achieve the statute's goal of increased access. Judge Taylor reasoned, however, that unless the business had received notice and the opportunity to remove barriers before being sued, the plaintiff cannot show that the attorneys' fees were necessary: the possibility exists that the business would have removed the barriers voluntarily. He then exercised his discretion, and denied Doran any attorneys' fees.

So far, no other court has adopted Judge Taylor's rule. However, the case was not overruled, and provides at least some small hope and a logical argument for a business faced with a large attorneys' fee demand in an ADA lawsuit.

Nonetheless, the best way to protect against such problems is to take all reasonable steps to ensure that your business meets the required accessibility standards. The ADA has been in effect for 14 years, and no matter how badly some people abuse the system, judges are likely to be equally impatient with a business which has not removed barriers to access in that time.

It is interesting to note that Mr. Doran has filed so many ADA suits (over 270) that he has trouble keeping them straight. He lost another recent suit against a Del Taco in Orange County, because his testimony was so inconsistent that the judge was not convinced he had ever visited that particular restaurant. See Doran v. Del Taco, Inc., 2006 WL 2037942 (CD Cal.).

This update is only a summary. The attorneys at Singler, Napell & Dillon, LLP can help you understand the full impact this law may have on your business. If you have any question, please contact Bruce Napell at (707) 823-8719 or BJN@singler-law.com.