Editor's Note: This is the third installment in a three-part series examining the recent rise in ADA Title III accessibility lawsuits in the Chicago area. The first installment discussed the growing trend. The second installment took a look at the lawyers and plaintiffs - who some have accused of being 'serial litigators' - bringing the legal actions in recent months.
Whether it’s the cost of compliance - in the form of handicapped restrooms, ramps, elevators or even simple signage – or the cost of a trial, the dollars can add up quickly for small businesses facing accessibility lawsuits under the Americans with Disabilities Act.
Even if a defendant settles - as did Margot Sersen, owner of Chicago’s LaSalle Flowers, last year - it can still cost thousands.
Sersen’s shop, a building typical of its River North neighborhood, was built in the 19th Century, with a front entrance abutting the public sidewalk, leaving no room for a permanent ramp.
When Sersen received a letter from lawyer John L. Steele, of the Accessibility Law Group, asserting that his client, Chicago resident Mary Mizerk, couldn’t maneuver her wheelchair up the 5-inch stoop, she thought she would be safely “grandfathered in” from any litigation.
But Sersen soon learned the ADA does not acknowledge such a defense. Any physical barrier, even those created prior to the ADA’s adoption, can be cause for a discrimination suit.
After several months of back and forth with Steele, Sersen finally settled, paying $2,500, plus the cost of a removable aluminum ramp, which was approximately $150, she said.
“[Steele] wanted $7,500,” Sersen said. “I was determined not to give him anything, but after six months, [my lawyer and insurance company] said it was in my best interests to give him the $2,500. They … said it’s going to cost us a lot more if we continue fighting with that guy.”
The amount was too much in Sersen’s mind, who said she was shocked to receive the lawsuit, and who still doesn’t believe she discriminated against any customers.
But it’s on the low end of what a business could pay.
Architect Richard Vivenzio, an ADA-testifying expert with Chicago-based business consulting firm Navigant, said when he is called to help resolve an ADA dispute, it rarely is a matter that can be fixed with a couple hundred dollars.
Vivenzio was involved in a case in New York City similar to that of LaSalle Flowers, in which the building entrance similarly left no space for a permanent ramp.
The parties ultimately settled, Vivenzio said, but not before the store agreed to make several ADA-compliant upgrades.
“They had a wooden ramp that they would carry out because, ironically, their owner was wheelchair [bound],” Vivenzio said. “And they had a guard at the door, so if someone needed assistance, they would pull out the ramp … . What the plaintiff wanted was an aluminum ramp that could be deployed. [We] did the research to find an aluminum ramp, [and we found one] … it was probably in the $15,000 range, and it wasn’t going to solve the problem because it was going to take 15 minutes to put together.”
But, the new ramp was installed, as well as a handicapped restroom, at a cost of roughly $20,000, he said.
However, those were just compliance costs. While Vivenzio couldn’t provide exact numbers for that suit, he said attorney’s fees could run north of $25,000 per case.
“[Businesses] pay experts, myself included, to get these things solved,” he said. “The plaintiff has experts, too, to find the items that don’t meet ADA requirements and put those in a report. If I’m on the defense side, those are the reports we’re checking to make sure they’re accurate.”
Usually, the courts aren’t looking to choke small business owners, Vivenzio said.
“It’s been my experience that the courts have tried to negotiate and find a solution that’s acceptable to both parties that doesn’t cost an arm and a leg,” he said.
Still, defense lawyers and business consultants say the best defense is to be proactive to avoid litigation in the first place.
Having a working understanding of the ADA Accessibility Guidelines can go a long way toward deflecting future lawsuits, especially if a business is considering renovations.
The ADA stipulates landlords must use a percentage of their overall renovation budget to make ADA upgrades, said Steele.
In a he and Mizerk brought against the Fabcakes coffee shop, a restaurant just down the street from LaSalle Flowers, the suit alleged the Chicago business had undergone an $80,000 renovation in 2011 without spending the proper amount to ensure the altered portions of the building were readily accessible to those in wheelchairs.
Fabcakes owner Fabiola Tyrawa and her landlords each paid $2,500 in the settlement and promised to provide signage to alert patrons that the entrance was handicapped accessible.
“No attorney ... would be doing their job if they just got a settlement that didn’t require the [best] compliance as possible with the ADA,” Steele said. “I’ve certainly never done that and certainly never will.”
From the standpoint of those who advocate on behalf of those with disabilities, complying with ADA will only help businesses.
“The truth is, there are a growing number of people with disabilities, especially as people are aging,” said Marca Bristo, president and CEO of Chicago-based Access Living, a group which advocates on behalf of access rights for those with disabilities. “Not only is [compliance] the right thing to do, the legal thing to do, but it is the best thing to do for your business. If you have … barriers, you're really limiting your establishment from clientele.”
However, what is readily achievable for one business owner may not be for another, making the ADA guidelines problematic for many business owners to navigate.
And just because a business has been hit with an ADA lawsuit once doesn’t mean it can’t happen again.
For that reason, Tyrawa went beyond what Steele’s complaint insisted she do. She installed a doorbell that any Fabcakes customer could ring for assistance. She also bought a portable ramp and trained her employees how to use it.
“I did all that stuff on my own,” Tyrawa said. “Since the lawsuit, nobody [has rung] the doorbell once. I put that [up] not to be sued again, but it's useless.”