Understanding ADA Compliance: An Interview with Attorney Brandon Rotbart

Brandon A. Rotbart is an ADA attorney based in Miami, Florida. Since opening his law office in 2003, he has handled hundreds of cases, with a strong focus on ensuring accessibility rights under the Americans with Disabilities Act. We sat down with Brandon to discuss his career, common misconceptions about ADA law, and what both individuals and businesses should know about compliance.

What first inspired you to focus your career on ADA law, and was there a particular case or client that solidified your commitment?

Brandon: I actually began my career as a public defender doing criminal defense law, then moved to a private law firm, which handled family law and criminal defense law, before opening my own law firm in 2003, where I handled mostly family law matters. I was doing quite well with it, and even handled cases involving actors, musicians, and professional athletes.

But after I met my wife, I began sharing office space with her father, who handled ADA enforcement lawsuits. I began doing some work with him on those matters and found the clients to be much nicer than many of my family law clients, and the work substantially more rewarding. Ironically, my father-in-law is now disabled (he has a progressive supranuclear palsy), so if I had to pick one particular person whom my ADA career is dedicated to, I would have to say him.

Where do you most often see people misunderstanding the scope of the ADA—in terms of what it does and doesn’t cover?

Brandon: By far the biggest misunderstanding that I see is that most people understand what the ADA requires, but don’t seem to understand how the ADA is actually enforced. Pretty much anywhere that is open to the general public within the United States needs to be ADA-compliant. How compliant they need to be depends upon when the building was constructed and/or renovated, with those constructed/renovated before 1991 (the effective date of the ADA) having a much lower standard as to what they need to do to become compliant.

Many disabled individuals believe that the government enforces the ADA, but that could not be further from the truth. While there are a few cases handled by the Department of Justice, that is extremely rare. Every single person I’ve spoken to who has filed complaints with the DOJ said their cases were declined. Also, while local building inspectors check for structural, electrical, and plumbing issues, they do not inspect for ADA compliance.

The way the ADA is actually enforced is through private lawsuits filed by disabled individuals. This occurs when a disabled individual goes to a property and finds violations of the Americans with Disabilities Act. Items like improper parking, paths of travel, bathrooms, seating, etc. The disabled individual then files a lawsuit in federal court pursuant to the ADA, suing not for money, but for compliance (though some states have separate laws that provide money damages for plaintiffs).

This brings me to the second biggest misunderstanding about the ADA—the cost of enforcement lawsuits. When the government wrote the ADA, it knew that no one would file these lawsuits if it was going to cost them a lot of money and time. So to encourage them, the ADA provides that the disabled plaintiff’s attorney’s fees and costs are paid by the offending property owner. As such, there is never any expense to the client when they call me to pursue these cases. In fact, I put it in writing to every ADA client that they will never be charged a penny under any circumstances before the case begins.

When a person feels their rights under the ADA have been violated, what’s the very first step you recommend they take to protect themselves legally?

Brandon: The very first thing you should do is pull out your phone and start recording or taking pictures. Anything that you think is a violation, or even might be, document it with a photo or video.

If there’s some violation being perpetrated by a person (such as an employee telling you that you can’t come in with your service dog, or that your guaranteed accessible room is not available), you are well within your rights to record them.

Of course, the second thing you should do is give me a call: (305) 350-7400.

In your experience, what makes a case strong enough to take to court instead of resolving it through mediation or negotiation?

Brandon: Almost all of my cases are resolved through mediation or negotiation, though that is always after the lawsuit has been filed. In fact, in over 12 years of handling ADA cases, I have yet to go to a final trial on any ADA matter. These cases are really not that complicated. Either a ramp is too steep or it’s not, the doorway is wide enough or it’s not, the hotel has enough accessible rooms or it doesn’t.

Generally, the more serious the ADA violations present at the property, the stronger the case. Also, as I mentioned previously, the date of construction affects how accessible a property must be. Properties constructed or renovated after 1991 are held to a stricter standard of compliance and are therefore easier to prosecute.

Can you share an example of a case where the line between a “reasonable accommodation” and an “undue burden” was tested, and how the court ultimately ruled?

Brandon: “Reasonable accommodation” and “undue burden” are really terms used in Title I of the ADA, which governs disabled individuals as employees. My ADA work is exclusive to Title III, which covers disabled individuals as guests, patrons, customers, etc. It covers locations such as hotels, restaurants, shopping malls, grocery stores, government buildings, public parks—basically anywhere open to the public where they are not employees.

Housing, however, is not covered by Title III, since it is not open to the general public. While housing may be covered by other laws, it’s not included under this section of the ADA.

If you do need an ADA lawyer for employment issues, rather than search for “ADA lawyer,” I recommend looking for an “employment discrimination lawyer.”

For people in the travel and hospitality industries—hotels, restaurants, tour operators—what are the most common accessibility pitfalls you see that lead to ADA compliance issues?

Brandon: By far, the most common lawsuits we have pertain to hotels. I think this is because when you go to a hotel, you’re kind of stuck there using their parking, entrance, bathrooms, showers, etc.

If I had to pick the most common issue, it would be the lack of clear floor space around toilets. Under the most recent ADA Accessibility Guidelines, there should be a minimum of 56×60 inches of clear floor space around a wheelchair-accessible toilet.

Another issue I often hear complaints about is hotel beds. While there is a requirement for clearance next to the bed, there are no guidelines for how high the bed must be, nor any requirement for clearance underneath for people who need to use a Hoyer lift. Many people call hotels in advance to ask about these issues, but hotel employees often don’t understand the questions and give incorrect information. Hopefully, this will be addressed in future ADA guideline updates.

Digital accessibility is becoming a bigger issue. How are courts currently treating websites and apps under the ADA, and what benchmarks should businesses be aiming for?

Brandon: There are two issues here.

First, booking an accessible hotel room online. You should be able to do this directly on the hotel’s website, specifying whether you need a room with an accessible tub, roll-in shower, or hearing-accessible features. Once you book such a room, your reservation should be honored—not only providing you with an accessible room, but also the exact type you requested. And just because they say it’s accessible doesn’t mean that it is. If you’re in doubt, take pictures or videos of the room and let me review them.

Second, websites for people who are visually impaired, which fall under Title IV of the ADA. Websites are supposed to be usable through screen readers. Unfortunately, I’m not as familiar with Title IV since I focus exclusively on Title III.

Since ADA Title III typically offers injunctive relief rather than damages, what strategies do you use to encourage compliance and get meaningful outcomes for your clients?

Brandon: Let’s first define “injunctive relief.” This means that under the ADA, you’re suing for the problem to be fixed rather than for money damages. However, some states—such as New York, New Jersey, and Michigan—have separate laws that do allow damages in addition to the ADA.

We work closely with our clients to identify specific ADA issues at a property and clearly state in lawsuits what barriers to access must be resolved. This typically involves both an online inspection—looking at property ownership, construction, renovations, number of rooms, websites, etc.—and an in-person inspection, where we measure things like toilet height, doorway width, ramp slopes, and door weight.

We also set timeframes for compliance rather than leaving them open-ended, and provide for enforcement through the courts. Finally, we follow up with our clients to ensure that promised renovations are actually completed.

Airlines that fly into the U.S. are often foreign carriers. How does ADA compliance intersect with international regulations, and what responsibilities do those airlines have toward disabled passengers when they enter the U.S.?

Brandon: The ADA doesn’t really cover airlines. I often tell people that you’re never going to have an accessible bathroom on an airplane unless it’s your own.

That said, airlines are covered under the Air Carrier Access Act, though it does not provide nearly as much protection as the ADA.

A related issue is cruise ships. Most cruise ships porting in the U.S. are not registered here. In 1998, there was a lawsuit against Premier Cruises, whose Bahamian-flagged ship, SS Oceanic, ported in Florida. The company argued it didn’t need to comply with the ADA because the ship wasn’t U.S.-registered. Ultimately, the 11th Circuit Court of Appeals (Stevens v. Premier Cruises) ruled that the ADA did apply, and the U.S. Supreme Court affirmed in Spector v. NCL. As a result, all cruise ships sailing in U.S. waters are subject to the ADA.

What emerging issues in ADA litigation should people with disabilities—and businesses—be paying close attention to right now?

Brandon: I think the biggest issue is uncertainty about the future of disability laws in general. The government is cutting back on expenses, and there is a real possibility that this could affect some disability-related laws.

Fortunately, Title III of the ADA should remain intact. Since it’s enforced through private lawsuits funded by offending property owners, it doesn’t cost the federal government money.

The other big issue is that the ADA Accessibility Guidelines haven’t been updated since 2010, and before that, 1991. The current guidelines don’t address newer issues like Uber/Lyft, Airbnb/Vrbo, and hotel bed standards. I’m hoping for an update soon, but I can’t say when that will be.

Looking back on your career so far, which case are you most proud of, and what advice would you give to someone who feels discouraged when their rights aren’t respected?

Brandon: If I had to pick one case, it would be a shopping center in Michigan that was not accessible. Instead of working to fix his property, the owner claimed that the ADA was a scam and he shouldn’t have to comply. Needless to say, that didn’t end well for him—he was ultimately forced to renovate the entire property and make it fully ADA compliant.

My advice to anyone who feels their ADA rights are being violated is this: document the issue and give me a call. Too often, people just move on. If a restaurant bathroom isn’t accessible, they just go somewhere else. But we have this great law, and enforcement costs the individual nothing. If more people filed lawsuits, businesses would quickly learn that accessibility isn’t optional.

About Brandon Rotbart

Brandon A. Rotbart, Attorney at Law

Law Office of Brandon A. Rotbart, P.A.
11098 Biscayne Blvd., Suite 401-18
Miami, FL 33161

Phone: (305) 350-7400

The Law Office of Brandon A. Rotbart, P.A., was established in 2003. Since then, the firm has handled hundreds of cases to achieve successful outcomes for clients in an efficient and cost-conscious manner. While most cases resolve amicably, when litigation is necessary, the firm is prepared to fight for your rights.

Visit Brandon’s website