Prolific filers of ADA lawsuits in California are always looking for something new to sue over. From faded parking lot paint, misplaced signs, and doors that require a few percent of extra effort to open, the alleged violations tend be highly technical in nature.
But very recently a new tend has emerged. I am seeing dozens and dozens of ADA lawsuits over one thing: outdoor dining tables. Read on to learn more.
All Public Areas of a Business Must be Accessible
Let’s start with a brief recap. Any area of a business that is open to the public must be accessible to persons with disabilities. This has been the law for many years. Conversely, areas not open to the public are not required to meet ADA standards.
I hear from a lot of business owners that believe that temporary facilities (such as a movable dining table placed outside during the day) are not required to be ADA compliant. That is wrong. If a business offers dining, inside or outside, then a certain number of the dining surfaces must meet ADA standards.
On the other hand, if a business does not offer any dining facilities, then no ADA dining areas need to be provided.
Lastly, keep in mind that even minor ADA violations can turn into a large federal civil rights lawsuit. I often hear from clients that they are frustrated that a “small” violation landed them in court. My response is that these lawsuits are almost always over small, technical violations.
Pandemic Response
Most of my clients are small business owners. During the 2020 pandemic, a lot of my clients that run restaurants did whatever they could to survive, including setting up temporary dining outside. This is because of the various shelter in place orders that have largely precluded indoor dining until very recently.
Understandably, not everyone was worried about finding ADA complaint outdoor dining surfaces. Business owners were doing what they had to do to survive. All the while, predatory ADA lawsuit filers were out trolling local neighborhood businesses and noting which businesses failed to provide ADA complaint dining outside. These professional lawsuit filers then sat on the lawsuits for months because they were sophisticated enough to know that suing a small business in 2020 would not be very profitable. I am now seeing a flood of lawsuits over outdoor dining accommodations.
I have even seen a few lawsuits where business owners opened up large tent dining areas and blocked the accessible parking spaces and are now being sued because they did not provide adequate disabled parking.
As Always, the Best Defense is a Good Offense
I tell everyone that will listen that ADA compliance is not a “set it and forget it” business practice. Ensuring fully accessible business facilities, and avoiding these nuisance lawsuits, is an ongoing obligation. This is especially true when a business makes material changes to its configuration or operations.
I strongly recommend that business owners engage, on a regular basis, with a Certified ADA Access Specialist (known as a CASp in California) to assess ADA compliance. The cost of these inspections is nominal compared to the cost of going through a lawsuit. Because, at the end of the day, businesses that meet the ADA standards stand the best chance of avoiding these nuisance lawsuits.
