Resistance to complying with the ADA in Memphis

Businesses choose to pay legal cost and attorney fees rather than provide access

PART ONE
By Tim Wheat

Why not wait until you get sued?

A practice concerning the 1990 Americans with Disabilities Act (ADA) is trickling down to small businesses in Memphis faced with compliance with the landmark civil rights law. Since 1992, American businesses have weighed the cost of compliance with the public access provisions of the ADA with the cost of potential litigation.

The owner of the commercial property, pictured in Memphis, built this inexpensive ramp only after a Pro Se lawsuit was drafted.

Many businesses have decided that it is better to be sued than to provide access, or to wait until the business is sued. The Krystal Company, for example, provided accesses in its newly constructed properties; however, the company did not make many required alterations to its older facilitates, even 10 years after the passage of the ADA. When a plaintiff in Alabama sued the fast-food chain for accessibility, the company expanded the settlement to include all Krystal Hamburger stores. 

Deborah Cunningham found there was no access to the restrooms in a Krystal Hamburger store in Memphis Tennessee; she looked to the law for equality. But the narrow doorways to the restroom in the Memphis hamburger establishment were covered by the settlement being created in Alabama. 

“There is not a lawyer in Memphis who would take the case,” said Deborah Cunningham the Executive Director of the Memphis Center for Independent Living. “The ADA only pays damages at the request of the US Attorney General. Local attorney’s seem to see more work and less reward in the ADA.”

Deborah Cunningham sued her local Krystal Restaurant last year Pro Se. She acted as her own attorney because her case was so unambiguous there seemed to be no defense for the hamburger store. But the company cited the settlement with the Alabama plaintiff and claimed that because the Krystal Company was bound by that settlement, Ms. Cunningham had no remedy through the ADA. 

Not only did non-compliance award Krystal with ten years of avoiding compliance costs for their 190 stores, but the settlement also gave the Krystal Company an additional 10 years to institute compliance with the ADA. If the average building life of the fast-food chain is less than 20 years, Krystal Company may avoid nearly all future physical accessibility in their existing facilities. The settlement only requires a phase-in over the course of the next 10 years; therefore, Krystal may phase-out or sell older buildings to evade accessibility costs. Although Congress legislated two and a half years for businesses to become accessible, The Krystal Company has successfully taken twenty-two.

According to the Disability Compliance Bulletin, the plaintiff’s lawyers were paid $50,000 in fees and costs. The plaintiff, Michael L. Jones was paid $10,000.00, however, people with disabilities in the future might find it difficult to protect their civil rights and that they may be barred from relief because of the gracious settlement in Alabama.

Neil's on Madison put in this ramp to the patio when asked by a patron

Had Krystal Hamburgers complied with the ADA without the settlement, they would have spent money on redesign and remodeling in most of their existing facilities. The Krystal Company also may have still faced litigation if the accessibility alterations they made were not suitable and at least risked litigation where they attempted to lower compliance costs. Because the law allows existing facilities, the older buildings, to reach compliance through making readily achievable barrier removal, owners and managers often look to provide only the minimum to gain compliance.

New facilities are guided by ADA Accessibility Guidelines while older buildings are required to provide access that is readily achievable. While access to a person with a mobility impairment may be clear, what is “readily achievable” may not be obvious and may be substantially different from year to year. The ADA defines readily achievable as “easily accomplished and able to be carried out without much difficulty or expense.” The definition seems to suggest that access would be different in a good business year, than in a poor year.

The Krystal Company is a comparatively large business compared to some Memphis businesses that have chosen the same path of waiting for litigation to define their ADA responsibilities. An inaccessible small business may get little direct comment from customers with disabilities, which may fuel the erroneous belief that the alterations made 10 years ago represent compliance today. In truth, the “readily achievable” standard does not exclusively apply to one business year, but must be part of a continuing plan of improved access. A small business; therefore, may favor to wait until someone sues, to better judge the extent of required compliance.

This ramp at Yosemite Sam's probably cost less than $20, but the attorney's fees and court costs were in the thousands.

Recently, Yosemite Sam’s at the corner of Madison and Cooper was shown on the local news because 10 years after the ADA, they were offering access only by a steep wooden removable ramp. The adaptation may have seemed reasonable at first, however advocates sued because in the previous 10 years the small business made no attempts to improve access to Yosemite Sam’s.

Even after a patron was shown on the local news spinning the wheels of his power wheelchair on the ramp, Yosemite Sam’s resisted making any alteration until the small business was sued. Additionally, in the Yosemite Sam’s case, the ADA Accessibility Guidelines discourages the use of removable ramps where permanent ramps are possible.

Eventually, Yosemite Sam’s provided a permanently accessible front entrance, accessible tables and an accessible restroom. The restaurant and bar would not share what they spent on the alterations; however, advocates that worked on the nine-month negotiations with Yosemite Sam’s contend that more was spent on legal fees than physical alterations to the business.

The long-term cost of Yosemite Sam’s resistance to the ADA is difficult to calculate compared to another Memphis example: Fashion Cents. Compliance to a customer’s complaint would have cost Fashion Cents in midtown Memphis nothing, yet they choose to resist the federal law and ended up paying thousands to the individual that complained, thousands to the Federal Government and made the requested alterations.

Read PART TWO: Resistance makes no CENTS next week in the MCIL Journal

- Tim Wheat