Without a single complaint to prompt the investigation, the U.S. Attorney’s Office in Houston is examining 25 of the city’s most popular restaurants for Americans with Disabilities Act compliance. A new section of the Department of Justice will focus on violations filed under the ADA and the Fair Housing Act. Not surprisingly, Federal officials did not release the names of the restaurants to be reviewed, saying they were “objectively selected” through recent rankings. Translation, is your business popular? You could be a target.
Let this serve as your reminder the Department of Justice may investigate possible ADA violations without a specific complaint. DOJ tries to maximize the impact of its work by choosing those businesses most likely to be patronized by disabled individuals. The more successful your business is, the more careful you need to be. Unlike a private plaintiff, the DOJ is starting with a survey asking the restaurants to self report on ADA compliance. This means that every target restaurant has a chance to fix any problems that may exist before a DOJ inspector arrives or a DOJ complaint is filed. In fact, U.S. Attorney Kenneth Magidson is quoted as saying that they want to “ensure that noncompliant restaurants make the necessary changes rather than face litigation.”
As we know from experience, most private plaintiffs sue first in order to preserve a claim for attorney’s fees. This is despite the fact that, the first goal of Congress in enacting the ADA was to create compliance, not lawsuits. As we see it, the private enforcement mechanism has failed to achieve this goal, with lawyers and consultants the prime beneficiaries of the legislation. Whether or not your business is on the DOJ list, think about it. Why not spend money on ADA compliance instead of on attorneys? Now is the time to make sure your business is physically accessible and has the proper policies for service dogs and other types of accommodation requests.