Small Business Owners Unfairly Penalized by ADA Shakedown Suits

An article published in the San Francisco Chronicle last month highlights the plight of small business owners and illustrates why the ADA should be changed. The story provides an account of the frustrations experienced by a small business, XOX Truffles, located in the North Beach area of San Francisco that allegedly failed to comply with the ADA by virtue of a step from the curb to the store that prevented wheelchair access. The store was sued and had to lay off 3 employees to pay its defense costs.

Florida businesses have faced similar suits in the past, mostly from a handful of South Florida attorneys who see it as their mission in life to make all businesses ADA compliant, even if it means putting such businesses out of business. According to an April, 2008 article in the Palm Beach Post, a single plaintiff is responsible for filing 139 lawsuits against small businesses in South Florida after visiting their establishment and finding that it did not comply with ADA requirements.

On one hand, small businesses can and should comply with the ADA. It is an important piece of legislation designed to protect disabled citizens and afford them equal access to businesses. On the other hand, small businesses can be crippled by a lawsuit that is nothing more than a shakedown designed to generate attorneys fees for the lawyer or law firm filing them.

ADA suits rightly enable disabled citizens to become "private attorney generals" to enforce the law, but the ADA wrongly fails to provide small businesses with an opportunity to cure the noncompliance before being sued. The ADA should be amended so that it continues to permit private enforcement, but only after the business is given notice of the noncompliance and a 90 day period in which to cure it. Such an amendment would be fair to both disabled citizens, and to small businesses, and it is long overdue.