In the 23 years since it was signed into law, the Americans with Disabilities Act (“ADA”) has helped break down barriers, discrimination, and prejudices that deny individuals with disabilities an opportunity to participate equally in all aspects of society. To reaffirm the ADA’s promise of equal access for individuals with disabilities to education, employment, housing, transportation, public accommodations, telecommunications, and government programs and services, Congress implemented the ADA Amendments Act of 2008 (“ADAAA”), which took effect January 1, 2009. The ADAAA expanded the definition of the term “disability” to provide individuals with a broad scope of protection. See 29 C.F.R. § 1630.1. This expanded definition applies to all titles of the ADA, including Title III, which governs public accommodations and commercial facilities.
What Does the ADA Require for Compliance?
The ADA regulations provide guidance for new construction as well as requirements for alterations to existing facilities. Successfully implementing ADA-compliant alterations appears to be more problematic for business owners than ensuring ADA-compliance in new construction. In general, compliance with the architectural requirements of the ADA necessitates access and attention.
Title III of the ADA prohibits discrimination on the basis of disability in places of public accommodation, as, for example, in retail stores, restaurants, and theaters. See 42 U.S.C. § 12182(a). It applies to those who own, operate, lease, or lease to such businesses. See id. Title III requires reasonable accommodations in rules and policies where necessary to avoid discrimination, and effective communication, for example, with blind or deaf customers. Compliance with Title III is measured against the DOJ’s Standards for Accessible Design, which provide detailed, code-like criteria. (The DOJ also provides technical assistance on its website at www.ada.gov, including information geared toward specific groups, such as small businesses.) The architectural component of Title III has impacted the franchising industry in recent years.
Title III requires different things of old, new, and altered facilities. A store built after January 26, 1993, must be in full compliance with the DOJ’s Standards; the only exception is for rare instances of structural impracticability based on extreme terrain. See 42 U.S.C. § 12183(a)(1). In stores built before that time but altered since, the altered portion must comply to the maximum extent feasible, and the path of travel and other amenities serving the altered portion must be accessible to the extent it costs less than 20 percent of the project total. See 42 U.S.C. § 12183(a)(2). In stores built before January 26, 1993, and not altered since (or in unaltered portions), barriers must be removed where it is “readily achievable” to do so, taking into account the cost of providing access and the resources of the business. 42 U.S.C. § 12181(9); id. § 12182(b)(2)(A)(iv).
The DOJ adopted revised standards in 2010. See 28 C.F.R. § 36.406. It is crucial in designing and altering facilities to ensure that the proper standards are applied. For example, the path of travel to an altered portion of a facility only has to be brought into compliance with the standards if the alteration affects a primary function and to the extent the cost of bringing the path of travel into compliance is less that 20 percent of the project total. See 28 C.F.R. § 36.403. If a private entity undertakes an alteration to a primary function area of the facility, the only required elements of the travel path to that area that are subject to the safe harbor are those that already comply with the 1991 ADA compliance standards. See id. But if a private entity undertakes an alteration to a primary function area and the required elements of the travel path to the altered area do not comply with the 1991 standards, then the private entity must bring those elements into compliance with the 2010 compliance standards. See id.
Many states have accessibility laws that are either broader, longer-standing, or both. For example, California has required basic access since 1970 and has had a well-developed set of standards since 1982. See Moeller v. Taco Bell Corp., 2007 WL 2301778, at *6 (N.D. Cal. Aug. 8, 2007). So while California buildings built in the 1970s or 1980s would only be subject to readily achievable barrier removal under the ADA, they would be subject to a new construction standard – that is, full compliance — under state law. See, e.g., id. at *22 (insufficient accessible seating in restaurants built after 1981).
The most meticulously designed facility can be rendered inaccessible through ignorance, inattention, and inadequate policies. The ADA’s regulations require that access be maintained. See 28 C.F.R. § 36.211(a). The following are real examples of accessible designs rendered inaccessible to use:
- Turning space in an accessible restroom is occupied by a trash can or decorative furniture;
- The aisle next to an accessible parking space is blocked by a cart return or dumpster;
- Accessible counters are covered with promotional materials and games;
- Accessible fixtures are broken and are replaced with inaccessible fixtures or left in disrepair, making them difficult or impossible for customers with disabilities to use. Examples include: doors too heavy for customers in wheelchairs to open; parking lot striping faded to the point that it is difficult to see where accessible spaces are located; and carpet and floor mats frayed to the point that they become trip hazards.
Burger King Castaneda Cases
The best known recent litigation regarding franchisor liability for accessibility issues is the class action lawsuits filed in the Northern District of California against Burger King Corporation, styled Vallabhapurapu v. Burger King Corp., 11-cv-00667, and Castaneda v. Burger King Corp., 08-cv-4262 (collectively, the “Castaneda Cases”). The plaintiffs in these cases challenged accessibility barriers at certain Burger King restaurants in California for people who use wheelchairs or scooters, including doors, narrow queue lines, restrooms, service counters, dining areas, and parking areas.
In July 2010, the court approved a $5 million settlement to the class covering 10 Burger King restaurants in the Castaneda class action, requiring Burger King to maintain access at the covered restaurants in three primary ways: by requiring the franchisees to perform a checklist of access-related tasks before opening each day; by surveying each of the 10 restaurants at least once every three years using an agreed-upon form and requiring franchisees to take any required corrective action; and by requiring the franchisees to hire registered architects to survey each restaurant every time the lease agreement is renewed and then resurveying to ensure that the remodeled restaurant complies. See Joint Notice of Motion and Motion for Final Approval of Stipulation and Settlement Agreement, Castaneda v. Burger King Corp., No. C-08-04262 (N.D. Cal. July 12, 2010).
In October 2012, the court approved a settlement for an additional 86 Burger King restaurants in the Vallabhapurapu class action. See Order Granting Motion for Final Approval of Class Settlement; Motion for an Award of Attorney’s Fees and Costs, Vallabhapurapu v. Burger King Corp., No. C-11-00667 (N.C. Cal. Oct. 29, 2012). The Vallabhapurapu settlement included essentially the same injunctive relief as in the Castaneda settlement, but the Court in Vallabhapurapu also approved an award of $19 million for damages, attorneys’ fees, and costs. Some have characterized these cases as the largest per-person and per-facility monetary recovery ever in a disability rights class action involving a public accommodation.
The recent cases against Burger King show that when owners of businesses that provide a service to the public are altering facilities, they must conduct a thorough analysis to ensure that the alterations comply with the 2010 standards and determine whether the safe harbor applies to the path of travel. Additionally, franchisors that impose remodeling or other construction work on facilities must be mindful of the interplay between the 1991 compliance standards and the current standards.
How Far Should a Franchisor Go?
Courts are divided on a franchisor’s liability for ADA compliance. Compare, e.g., United States v. Days Inns of America, Inc., 151 F.3d 822, 824 (8th Cir. 1998) (holding franchisor liable where it designed and built noncompliant new facility), with Neff v. American Dairy Queen Corp., 58 F.3d 1063, 1068-69 (5th Cir. 1995) (holding franchisor not liable where franchisor exercised no control over barrier removal). There is no question, however, that the franchisee that operates the store or restaurant is responsible for compliance.
A franchisor must walk a fine line between exerting too much and too little control over its franchisees. If the franchisor exercises too much control, it may find itself subject to vicarious liability for franchisees’ conduct. If it does not exercise enough control, the brand and system may suffer. In the context of Title III of the ADA, a franchisor-landlord is expressly forbidden from disclaiming an obligation to ensure compliance with accessibility laws. How then can the franchisor limit its exposure?
The Burger King cases brought this question to the fore, because the plaintiffs sued only the franchisor, Burger King Corporation. In separate litigation, Burger King Corporation sued the franchisees of the restaurants involved, putting at issue provisions of the franchise agreement addressing liability for legal compliance.
Contractual provisions in franchise agreements offer one way of limiting exposure. Beyond the typical provision requiring franchisees to “abide by any and all applicable laws,” ADA-specific provisions may require, for example, that franchisees certify to a franchisor that their franchised business is designed, constructed, and/or altered in accordance with all laws, regulations, statutes, codes, rules, and standards, including the ADA. A franchisor may make this certification a condition of approval for the franchisee to begin operation, whether the establishment is newly opening to the public or has been refurbished. By whatever provisions are necessary, the franchise agreement should include strict obligations for the franchisee to comply with the ADA.
A franchisor also may choose to include provisions in its franchise agreement that expressly limit its involvement, and therefore its control, over the design and construction process. Mark A. Kirsch, Franchising Compliance with the Americans with Disabilities Act, General Practice, Solo & Small Firm Division Magazine, Vol. 17, No. 6 (September 2000). The franchisor may, for example, provide contractual disclaimers regarding any prototype drawings provided to franchisees. Id. No matter the contractual disclaimers, provisions, and certification requirements, however, the franchisor’s actions also will play a part in minimizing its potential liability.
Franchisor-lessors should consider ADA compliance when requiring franchisee-tenants to place new technology in their stores. Self-service touchscreen kiosks, which may be difficult for people with certain disabilities to use, illustrate the need to consider the ADA. The law requires that these devices be accessible, but no specific accessibility regulations have been promulgated for them yet. See Nondiscrimination on the Basis of Disability by State and Local Governments and Places of Public Accommodation; Equipment and Furniture, 75 Fed. Reg. 43452-01 (proposed July 26, 2010) (to be codified at 28 C.F.R. pts. 35 & 36). Failure to ensure access may well subject franchisors to individual and class action lawsuits, both for injunctive relief and damages under certain state laws.
In conclusion, to ensure accessibility and avoid liability, it is important for franchisors and franchisees alike to understand the ADA; to build and alter facilities to comply with accessibility standards; and to encourage communication between design and headquarters personnel and store-level personnel who will manage, operate, and maintain franchised facilities. Good communication and training can make franchised facilities both more inviting to customers and less inviting to the plaintiff’s bar.
THE ABA'S COMMISSION ON DISABILITY RIGHTS
The Commission on Disability Rights is one of the four diversity groups in the American Bar Association (“ABA”) that works to foster the inclusion of lawyers with all types of disabilities—both apparent and hidden—in the ABA and the legal profession as a whole. To participate in this effort, you can:
- Encourage your law firms, corporations, judiciaries, state bars, law schools, and other legal employers to sign the Commission’s Pledge for Change and incorporate disability as a key component of their diversity activities;
- Share their progress and successes on the Commission’s website;
- Nominate employers for the Commission’s Champions for Disability Inclusion in the Legal Profession Award; and
- Use resources, including the Commission’s toolkit on planning accessible meetings and events, that can help employers ensure that their facilities, websites, meetings, events, and materials are accessible to persons with disabilities.
See the following links for more information:
Toolkit at http://www.americanbar.org/content/dam/aba/administrative/mental_physical_disability/Accessible_Meetings_Toolkit.authcheckdam.pdf