New Yorkers living with disabilities too often find themselves discriminated against, though unwittingly, by proprietors of public accommodations such as bars and restaurants. The Americans with Disabilities Act (“ADA”), and the rules and regulations promulgated pursuant to it, offers persons who believe that they have been discriminated against due to their disabilities a private right of action to seek redress for such discrimination. The difficulty for owners of these establishments is that although they may sincerely want to comply with the ADA (after all, they would like more customers), and though they have no animus towards those with disabilities, they nevertheless determine that the costs associated with compliance with the ADA are too burdensome a demand on their business.
This tension between bar and restaurant owners who think that complying with the ADA is financially impracticable and persons with disabilities who want to enjoy the goods and services of these establishments has resulted in a deluge of civil litigation in New York courts brought pursuant to the ADA. Bar owners, in particular, view themselves as sitting ducks for unscrupulous attorneys who engage the disabled and encourage them to visit these establishments for the primary purpose of laying the groundwork for an ADA lawsuit. Of course, it is true that places of public accommodations should seek to comply with the ADA and its valid purpose of ensuring equitable treatment for the disabled. However, these same establishments should not be used as pawns subject to lawsuits that are primarily initiated only to negotiate a settlement.
Title III of the ADA prohibits discrimination against individuals “on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation . . ..” A Title III claim must allege and prove that (1) the complainant is disabled within the meaning of the ADA; (2) that the proprietor owns, leases, or operates a place of public accommodation; and (3) that the proprietor discriminated against the plaintiff within the meaning of the ADA. Discrimination includes, “a failure to make alterations in such a manner that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities…[and] a failure to remove architectural barriers . . . in existing facilities . . . where such removal is readily achievable.”
In keeping with the purpose of the ADA, courts construe the statute’s regulations broadly and its exceptions narrowly. Accordingly, the terms “feasible,” “readily achievable” and “alterations” are often construed in favor of the complainant. Moreover, historic properties are not exempt from the ADA requirements. However, the ADA does provide for an allowance of which a bar or restaurant may avail itself.
The ADA compliance requirements are inapplicable to buildings that have not had alterations since 1992; so typically “1992 Disputes” involve determining what is an alteration? Although the ADA does not define the term “altered,” the Department of Justice’s implementing regulations does. An alteration is “a change to a place of public accommodation or commercial facility that affects or could affect the usability of the building or facility or any part thereof.” It further describes alterations, “Alterations include, but are not limited to, remodeling, renovation, rehabilitation, reconstruction, historic restoration, changes or rearrangement in structural parts or elements, and changes or rearrangement in the plan configuration of walls and full-height partitions. Normal maintenance, reroofing, painting or wallpapering, asbestos removal, or changes to mechanical and electrical systems are not alterations unless they affect the usability of the building or facility.”
Therefore, the accessibility requirements imposed by the ADA apply to buildings that have had alterations after 1992 and to new constructions. Additionally, where it is “readily achievable,” even buildings that have not had alterations post-1992 must remove architectural barriers, regardless of whether the barrier impedes access to a path of travel, bathroom, telephone, or drinking fountain serving an altered area. In addition to the requirements imposed by the ADA and New York City and State ADA-analogues, a proprietor must also comply with the Architectural Barriers Act (1968) and the Rehabilitation Act (1973).
In sum, a bar or restaurant owner is a place of public accommodation. As such, they are bound by the regulations of the ADA and other similar laws. Disabled persons have a valid need to have access to the services provided by these places, and, based upon enacted laws set to accomplish this goal, restauranteurs must do everything in their power to thoroughly comply.
