By Minh N. Vu

The U.S. Justice Department (DOJ) and the owners of the Rosa Mexicano restaurants at Lincoln Center, Union Square, and First Avenue recently entered into a consent decree that resolves an enforcement suit filed in October 2012.  The DOJ alleged that the restaurants were not physically accessible to individuals with disabilities, in violation of Title III of the Americans with Disabilities Act (ADA).  The consent decree requires the restaurants to make a number of  physical changes to their public spaces, including the creation of a new accessible unisex restroom at the First Avenue location, and, if feasible, the creation of an accessible entrance at the Union Square location.  In addition, the restaurant owners will have to pay $30,000 in civil penalties to the United States Government.

The lawsuit and consent decree appear to have resulted from a review of many Manhattan restaurants for compliance with Title III of the ADA conducted by the U.S. Attorney’s Office for the Southern District of New York (USAO). The USAO is a part of the DOJ.  Under Title III of the ADA, the DOJ is authorized to undertake these compliance reviews even if no one has complained about or has been injured by any violations.  The restaurants that were a part of this compliance review received a lengthy questionnaire about the accessibility of their public spaces, and their policies and procedures for accommodating guests with disabilities.  The USAO also inspected the restaurants.

Restaurant spaces, particularly those in Manhattan, can present serious accessibility challenges because many are in small spaces in older pre-ADA buildings.  Restauranteurs should be aware that restaurants in spaces constructed prior to the ADA’s enactment are, at a minimum, required to remove barriers to access if the removal is readily achievable.  The most common issues we see in restaurants are a lack of (1) of accessible tables that have the appropriate height and space underneath to allow a wheelchair to pull under; (2) 36” wide accessible routes inside the restaurant connecting accessible features; (3) lowered accessible seating at the bar; and (4) restrooms that are wheelchair accessible.  Some restaurants have wheelchair accessible restrooms but make them inaccessible by putting furniture and other items into required maneuvering spaces.

The Manhattan restaurant compliance review is the latest of several broad ADA Title III initiatives the USAO has spearheaded.  In the past ten years, the USAO has conducted compliance reviews of a number of Manhattan theatres as well as dozens of hotels located in the Times Square area.  Each of these initiatives resulted in businesses agreeing to make accessibility changes in agreements with the USAO.