Seyfarth Synopsis:  DOJ provides guidance on sales/service counter rules in the 2010 Standards that provides some relief to businesses.

Retailers and other businesses should be pleased with the DOJ’s pronouncement on February 25, 2019, that they can lawfully provide sales/service counter space that is less than 36” long, as long as the entire space is at an accessible height of 36” or lower.  While we always thought the 2010 ADA Standards for Accessible Design (“2010 Standards”) were unambiguous on this point, plaintiffs filed many lawsuits claiming the ADA requires retailers to provide a minimum 36” length of lowered accessible counter that is entirely clear of all objects.  Courts have reached different conclusions, and now the DOJ has weighed in.

The DOJ’s statement came in the form of an amicus brief which Judge William Alsup of the Northern District of California had requested in connection with a pending motion for summary judgment.  The sales/service counter at issue in the case was at an accessible height (i.e., 36” or less above the floor), but did not provide a 36” length because it included items such cash registers and merchandise displays on the counter.  The DOJ stated that this counter complies with the Exception to Section 904.4.1 of the 2010 Standards because it is at a uniform accessible height, even if the space provided is not 36” long.  The DOJ also said that the placement of merchandise displays and a cash register on a sales/service counter that is 36” long does not violate the 2010 Standards because Section 904.4.1 “does not so much as mention, let alone prescribe any requirements regarding ‘clear’ counter space.”

While this DOJ pronouncement provides much needed clarification, businesses should consult their ADA Title III specialist attorneys before filling up their accessible lowered counters with anything more than a register and some merchandise displays, particularly if high counters are provided for use by non-disabled customers.

Edited by Kristina M. Launey

By Minh N. Vu and Kristina M. Launey

Now that we are all back in work mode, we thought it would be useful to take a quick look at some of the major ADA Title III trends and highlights of 2013 and how they will impact the coming year.   

Digital Accessibility.  We saw a definitive uptick in the number of issues relating to the accessibility of electronic information technology by individuals with disabilities.  Individuals with sight disabilities complained that they could not access the websites of businesses, or that they had trouble using mobile applications that were not fully compatible with the screen readers provided on their mobile devices.  The enforcement agencies in Massachusetts and New York took a keen interest in these issues, which resulted in some businesses agreeing to make their websites and mobile applications accessible to people with disabilities.  Private litigants and advocacy groups were also successful in persuading businesses to voluntarily make their websites accessible. 

The Department of Transportation (DOT) issued its final regulations under the Air Carrier Access Act, requiring airlines to make their websites accessible to people with disabilities by complying with Levels A and AA success criteria of the Web Content Accessibility Guidelines (WCAG) 2.0 within the next few years.  The DOT’s adoption of this standard suggests to us that the Department of Justice (DOJ) will also propose this standard for the websites of public accommodations.  When those proposed regulations will come out is still uncertain, but we predict it will be sometime in 2014. 

Perhaps the most significant news in the area of website accessibility is that DOJ sought to intervene in a private class action brought against a public accommodation for not having an accessible website.  While DOJ has always pressured businesses behind the scenes to make their websites accessible, this is the first enforcement suit of its kind, filed before DOJ has even issued proposed regulations defining what constitutes an accessible website.  The proposed complaint cites to the WCAG 2.0 as a well-accepted industry guideline, further persuading us that the DOJ will in fact adopt this set of guidelines as its legal standard when it finally issues its proposed rule.

Businesses are taking note of the increased private and governmental enforcement activity relating to websites and digital accessibility more generally.  We are seeing businesses be more proactive about this issue and trying to include accessibility in new websites, new web pages, and new contracts with partners that are involved with development of website content.   This is a smart move, as digital accessibility will almost certainly continue to be a hot area in 2014.

Pool Lift Lawsuits Against Hotels.  If you stayed at a hotel with a swimming pool or spa in 2013, you might have noticed that the swimming pool and/or spa had a crane-like device with a seat installed next to it.  These devices are used by people with mobility disabilities to get in and out of a pool or spa.  The DOJ’s 2010 ADA Title III regulations required these lifts to be installed in existing public accommodations facilities by January 31, 2013, unless doing so was not readily achievable.  As we predicted, within several months after the deadline, plaintiffs’ attorneys began filing a flurry of lawsuits in Ohio and Indiana alleging that certain hotels did not have pool lifts, even though some actually did.  We anticipate that more lawsuits of this type will be filed in 2014.

Point of Sale Device Class Actions.  In the second half of 2013, a number of major retailers across the United States were hit with class actions filed in the Western District of Pennsylvania by a blind plaintiff alleging that he and other blind people are being denied access because they cannot use Point of Sale (POS) devices that do not have a tactile keypad for inputting personal identification numbers.  Although the ADA Title III regulations do not specifically address POS devices and their accessibility to the blind, tactile keypads on POS devices have been required in California for several years.  We will report on developments in these pending cases as they arise.

New California Accessibility Standards.  Effective January 1, 2014, the 2013 California Building Code’s (“CBC”) requirements were substantially revised and reorganized to be  more consistent with the federal  2010 ADA Standards for Accessible Design (“ADA 2010 Standards”). However, many substantial differences remain, so businesses in California should take care to comply with both the ADA 2010 Standards and CBC, or if the standards conflict, with the stricter – meaning that which provides greater access.  Businesses should also remain mindful of the other California distinction  – statutory damages of $1000-$4000 per violation – which makes vigilant compliance with the CBC and 2010 ADA Standards that much more important to California businesses.

New Mobile Apps that Rate the Accessibility of Businesses.  In 2013, entrepreneurs with disabilities launched two new mobile applications — AbleRoad and AccessMap — that allow the public to rate and review how accessible business establishments are to people with disabilities.  We reported on these applications and will continue monitoring to see how they develop and whether they will become a litigation research tool for serial plaintiffs and their lawyers. 

Challenges in Renovations Due to Changes in the 2010 Standards.   Effective March 15, 2012, all public accommodations and commercial facilities had to start complying with the 2010 ADA Standards in constructing new facilities and altering existing ones, subject to very limited exceptions.   In 2013, we began seeing some of the challenges the new standards present as hotels renovate spaces that are compliant with the prior set of ADA Standards but must now be brought up to the 2010 ADA Standards because they are being altered.  For example, the 2010 ADA Standards require different bathroom configurations in accessible guestrooms than the 1991 Standards and some hotels are finding it very difficult and/or expensive to make those bathrooms comply with the 2010 Standards.  This issue will continue to be a problem in 2014 and for many years to come.

We thank you for your readership last year and look forward to bringing you more ADA Title III News and Insights in 2014.

By: Mary Kay Klimesh

On November 7, 2013, from 2:30 – 4:00 p.m. (ET), the U.S. Access Board will hold a webinar addressing accessible surfaces for playgrounds. The Access Board has developed accessibility guidelines (available at http://www.access-board.gov/guidelines-and-standards/recreation-facilities/guides) for newly constructed and altered play areas. During this webinar, Access Board staff and a representative from the National Center on Accessibility (NCA) will present results from a recently completed study on playground surfaces that assessed how well various types of surface systems, including engineered wood fiber, poured in place rubber, and rubber tiles, perform over time.  For more information, including registration instructions, visit www.accessibilityonline.org.