September 21, 2011

ADA Lawsuits a Potential Problem for New York City Restaurants

More Than 50 of Manhattan's Most Popular Restaurants Are First on the Investigation List – Will Other Cities/States Follow New York's Example?
Holland & Knight Alert
Lynn E. Calkins | Rafe Petersen

Having already targeted apartment developers and hotels, this week, the U.S. Attorney for the Southern District of New York, Preet Bharara, announced a new initiative whereby his office will investigate more than 50 of Manhattan’s most popular restaurants to determine whether they are being operated in compliance with the Americans with Disabilities Act (ADA).

Survey Is the First Step; On-site Inspections to Follow

Mr. Bharara’s broad investigation is not based on specific complaints against restaurants but will target the most popular restaurants as listed in the 2011 Zagat Guide and will start with a survey to be completed by restaurant owners and operators. The surveys will address a wide number of issues related to whether the restaurant is accessible to persons with disabilities – going beyond what is commonly thought to be the most basic requirements of the ADA. Upon receiving the survey results, investigators will then conduct on-site inspections to confirm survey responses and to evaluate each restaurant’s compliance with the ADA. As a result of these investigations, restaurant owners and operators may face further inquiry or civil lawsuits brought by the U.S. Attorney’s Office or Department of Justice.

The anticipated lawsuits, like those brought by aggressive plaintiffs’ groups, are expected to include demands for compliance agreements which would mandate alterations that exceed the legal requirements of the Americans with Disabilities Act. For example, lawsuits brought by private plaintiffs’ groups have failed to take into consideration whether a building has a historical or landmark status even though the ADA allows consideration of whether an alteration sought could threaten or destroy the significance of historical buildings in violation of state and local law.

Although Mr. Bharara’s investigation will target restaurants in New York City, restaurant owners and operators across the country should be on heightened alert for similar investigations and lawsuits.

Holland & Knight lawyers have extensive experience in defending and settling these types of suits as well as providing comprehensive guidance in all Americans with Disabilities Act matters. That experience includes representing restaurants in Manhattan and defending alleged violations of the Americans with Disabilities Act and the New York City Human Rights law for accessibility design and construction violations in an altered historic building.

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