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Colorado restaurants face ADA lawsuits over websites; ‘right to cure’ period in disability law urged

DENVER—The Colorado Restaurant Association (CRA) issued a warning in their October 5 member newsletter that a blind resident of Douglas County has been filing lawsuits against Colorado businesses, including restaurants, because their websites do not comply with the Americans with Disabilities Act (ADA).

Title III of the ADA, written in 1990, before the internet existed as it does today, prohibits discrimination against persons with disabilities in providing services and goods in places of public accommodation. Courts have ruled that websites fit the definition of places of public accommodation.

But the statute has not been amended since then to specifically address the challenges faced by website owners in keeping their sites legal.

Fisher Phillips, an employment and labor law firm with offices nationwide said in a 2019 newsletter to auto dealerships, “Claims generally involve customer complaints relating to tangible physical barriers, such as bathroom accessibility issues (such as toilets in the wrong place relative to a sidewall or partition, or toilet paper towel dispensers at improper heights) and parking lots (such as the slope of the ramps, or the locations for handicapped parking spaces). But they can also include issues relating to a purely digital domain.”

A.B. Tellez, owner of Rosie’s Diner in Monument, took the CRA’s warning seriously and spent about $700 to have a website programmer modify his site to be in compliance as soon as he heard about the threat.

Tellez told Complete Colorado he was sued in 2017 after activists came to the diner with measuring tapes and then claimed that his paper towel dispensers in the bathrooms were mounted one-half inch too high, his wall-mounted outdoor handicap parking signs were mounted an inch too high, and painted handicap parking space lines were three inches too narrow.

Despite requests from other restaurant owners to join in defending against that wave of lawsuits, Tellez decided to go ahead and pay an undisclosed amount to settle the lawsuit, saying it was less expensive than spending money on lawyers to fight the complaints.

Sonia Riggs, CEO of the CRA, told Complete Colorado that website compliance issues are a more recent phenomenon, and the costs of compliance can be burdensome right now.

Restaurants in particular are suffering economically during the COVID-19 pandemic.

“Bringing a website into ADA compliance usually starts around $500, and it needs to be maintained,” said Riggs. “Not cheap, but less expensive than a lawsuit. Restaurants are particularly hard up for cash right now, however, so even $500 can feel untenable.”

The other side of the issue is the difficulty faced by vision and hearing impaired customers in ordering online from non-compliant sites, which is of particular importance because of the pandemic, and which has come to the fore with the expansion of online ordering and “gig” delivery of food through companies like Door Dash and Uber Eats.

While many ADA lawsuits are demands that businesses comply with ADA requirements, the filing of a federal lawsuit exposes business owners to expenses, including attorney’s fees, that could be avoided if a right to cure the violation before a lawsuit can be filed was included in the law.

A similar issue regarding lawsuits filed over minor unintentional Colorado campaign finance reporting violations became such a thorn in the side of the state Legislature that it passed a law providing a period in which campaign can cure the violation.

“We’ve been advocating for a right to cure period for years – many restaurateurs do not know that they are in violation of the law, and would be happy to make the changes to comply once they are aware,” Riggs said. “This is something that would need to change at the federal level. We continue to advocate for a right to cure period, however, because most owners don’t realize they’re violating the law until they’re in the midst of a lawsuit.”

Tellez agrees. His experience with an expensive ADA lawsuit over insignificant violations left him shocked at the mercenary attitude of the plaintiffs regarding things he would have been glad to fix if he had only been informed of the defects prior to the filing of a lawsuit.

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