Contending with Title III of the ADA: Tips for Property Owners and Managers

Businesses Affected

With respect to real estate, Title III defines two types of structures that are affected by its provisions: commercial facilities and places of public accommodation.

A commercial facility is one that is 1) intended for nonresidential use and 2) whose operations will affect interstate commerce. 42 U.S.C. '12181(2). This generally encompasses all private workplaces, including those not open to the public (eg, factories, warehouses, and office buildings). Title III requires that all commercial facilities designed and built for occupancy after Jan. 26, 1993 be “readily accessible to and usable by individuals with disabilities.” In the case of commercial facilities altered after Jan. 26, 1992, the alterations must be made in such a way that the altered portions “are readily accessible to and usable by individuals with disabilities” and, where the alterations could affect usability of or access to areas which contain a “primary function” or service areas such as bathrooms, telephones, and drinking fountains, the alterations must be made “in such a manner that, to the maximum extent feasible, the path of travel to the altered area and the bathrooms, telephones, and drinking fountains serving the altered area, are readily accessible to and usable by individuals with disabilities.” 42 U.S.C. '12183.

A public accommodation is a private business entity that services and is open to the public and affects commerce. The term generally encompasses hotels, restaurants, theaters, stores, museums and recreational facilities. 42 U.S.C. '12181(7). Title III requires that all public accommodations meet the construction requirements for commercial facilities as set forth above and prohibits any person who “owns, leases (or leases to), or operates” a public accommodation from discriminating against one “on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations.” 42 U.S.C. '12182. This requires that a public accommodation not only modify, where necessary, its policies and procedures, but also that it remove architectural barriers “where such removal is readily achievable.” Id.

Who Is Responsible for Compliance?

As owners and entities responsible for design and construction of real estate projects, developers can be held liable under the ADA for violations of Title III's requirements concerning new construction and alterations to existing structures and, to the extent they continue to own, lease and/or operate the property after construction, they can be held liable for discrimination in a public accommodation.

As owners and lessors of real property, landlords are expressly liable for compliance with the ADA if they lease property that is to be used as a public accommodation. 42 U.S.C. '12181(a). Similarly, if management companies “lease” real property, they too are liable for violations. Id., 56 Fed. Reg. at 35555. Indeed, a landlord will be liable for ADA barrier violations, even if they occur solely within a tenant's leased premises; the landlord may even be a necessary party to any enforcement action. Botosan v. Paul McNally Realty, 216 F.3d 827 (9th Cir. 2000); Frotton v. Barton, 219 F.R.D. 31 (D. Mass. 2003). While a landlord may require a tenant to comply with ADA regulations, the landlord's rights are only against the tenant for indemnification. Frotton, supra.

Tenants are also necessary parties to any claim of ADA access violations that occur in their premises. Id. While normally not responsible for violations in common areas, if tenants utilize common areas for their own purposes, they may nevertheless be liable for violations resulting from their use. Emerick v. Kahala L & L, Inc., 2000 U.S. Dist. LEXIS 7374 (D. Haw. 2000) (restaurant's placement of chairs and tables in common area of shopping mall).

Whether architects and contractors can be held liable for the design and construction of a noncompliant facility is less clear. On this issue, the position of the Department of Justice is that they are encompassed within the language of the statute. See ADA Title III Technical Assistance Manual, 'III-5.1000 (found at www.usdoj.gov/crt/ada). A majority of courts has agreed and adopted the DOJ's position. See, eg, United States v. Days Inns of America, 997 F. Supp. 1080 (C.D. Ill. 1998); United States v. Ellerbe Becket, Inc., 976 F. Supp. 1262 (D. Miss. 1997). However, this position is not universal. In Paralyzed Veterans of America v. Ellerbe Becket Architects & Engineers, P.C., 945 F. Supp. 1 (D.D.C. 1996), the court held that only an entity that both designs and constructs the facility may be held liable under Title III. In Longberg v. Sanborn Theaters Inc., 2001 U.S. App. LEXIS 21065 (9th Cir. 2001), the court held that only owners, lessors, or operators can be held liable for noncompliant new construction and, therefore, the project architect was not liable under the statute. See also, United States v. Days Inns of America, 22 F. Supp. 2d 612 (E.D. Ky. 1998).

A final area of interest is the liability of franchisors for Title III violations. Consistent with many other areas of the law, such as employment discrimination, franchisors may be held liable for ADA violations if they exercise sufficient control over the franchisee so as to cause the franchisee to comply or not comply with the ADA. This was the holding in United States v. Days Inns of America, 997 F. Supp. 1080 (C.D. Ill. 1998), where the court found that the franchisor's extensive involvement in overseeing and reviewing the design and construction of a new hotel resulted in liability. The court reached the same result in United States v. Days Inns of America, 151 F.3d 822 (8th Cir. 1998), cert. denied, 526 U.S. 1016 (1999).

Private Plaintiff Litigation

Essential Elements

To bring a claim on the ground that new construction or alteration of a commercial facility fails to comply with the ADA, the plaintiff must establish that: 1) he, she or it is covered by the ADA; 2) the structure is a commercial facility; and 3) the construction or alteration is not in conformity with the ADA Accessibility Guidelines. For a claim based upon discrimination in the provision of a public accommodation, the plaintiff must establish that: 1) he, she or it is covered by the ADA; 2) the defendant's facility is a place of public accommodation; 3) plaintiff was discriminated against; and 4) the circumstances are such that it may be inferred that the discrimination was based upon a disability.

Proper Plaintiffs

For an individual to have standing to bring an ADA action, he or she must either be or about to be subjected to discrimination based upon his or her own disability, or on the ground that he or she was discriminated against because of an association with a disabled person. 42 U.S.C. '12182(b)(1)(E); Johanson v. Huizenga Holdings, Inc., 973 F. Supp. 1175 (S.D. Fla. 1997).

An individual does not have to “engage in a futile gesture,” however, and may sue if he or she has actual notice of a nonconforming public accommodation and is thus deterred from using the facility. On the other hand, a plaintiff may not be entitled to relief if he or she is not likely to visit the facility in the future because there must be a “real and immediate threat” of discrimination. Rodriguez v. Investco, L.L.C., 305 F. Supp. 2d 1278 (M.D. Fla. 2004) (plaintiff had filed more than 200 ADA related suits; intent to return was held to be disingenuous and merely for the purpose of pursuing the litigation); Blake v. Southcoast Health System, Inc., 145 F. Supp. 2d 126 (D. Mass 2001) (plaintiff had died, hence no possibility of future discrimination); Clark v. McDonald's, 213 F.R.D. 198 (D.N.J. 2003) (hereafter “McDonald's“) (finding sufficient evidence of intent).

Similarly, a plaintiff cannot sue for discrimination against disabilities that he or she, or his or her disabled associate, does not have; that is, a paraplegic cannot sue for the failure to provide menus in Braille. McDonald's, supra. In addition, although a plaintiff does not need to encounter the barrier in question directly, he or she does not have standing for injunctive relief for a barrier of which the plaintiff was not aware at the time of the filing of the complaint. Access Now, Inc. v. South Florida Stadium Corporation, 161 F. Supp. 2d. 1357 (S.D. Fla. 2001).

An organization may sue to enforce the ADA. “An association has standing to sue on behalf of its members when: (1) one of its members otherwise would have standing to sue on his own behalf; (2) the interests at stake are germane to the purpose of the organization; and (3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Hill v. Park, 2004 U.S. Dist. LEXIS 1395 (E.D. Pa. 2004). Because the third prong is not constitutionally mandated, but rather is “prudential,” several courts have noted that even if some testimony by individual members will necessarily be required, standing may still exist. Wein v. Am. Huts, Inc., 313 F. Supp. 2d 1356 (D. Fla. 2004); McDonald's, supra.

A few courts have also recognized that an association may have standing to bring suit in its own right if the minimum constitutional requirements are met: 1) that it has suffered an injury in fact; 2) that there is a causal connection between the defendant's conduct and the injury; and 3) that a favorable decision will redress the injury. Burger King, supra. As to the injury in fact, merely incurring litigation expenses is not enough, but “frustrating” the organization's mission may be. McDonald's, 213 F.R.D. 198 (D.N.J. 2003); but see Burger King, 255 F. Supp. 2d 334 (D.N.J. 2003); Hill v. Park, 2004 U.S. Dist. LEXIS 1395 (E.D. Pa. 2004); (purely ideological injury is insufficient). Nevertheless, because the ADA requires that the plaintiff itself be subject to discrimination, it has been held that an organization that itself has not been discriminated against may never have standing to bring an ADA claim. McDonald's, supra.

Exhaustion of Administrative Remedies

In cases of employment discrimination, plaintiffs must first exhaust their administrative remedies before bringing suit. Until recently, it was unclear whether plaintiffs in Title III actions must similarly exhaust such remedies. However, two Pennsylvania courts have now ruled that there is no such requirement. Specifically, in Burkhart v. Widener Univ., Inc., 2003 U.S. App. LEXIS 9004 (3rd Cir. 2003), a case of nonprecedential value, and Hill v. Park, 2004 U.S. Dist. LEXIS 1395 (E.D. Pa. 2004), it was held that a plaintiff need not first submit his claim to the appropriate state agency before bringing suit. In addition, there is no current requirement that the plaintiff notify the defendant prior to commencing legal action or attempt to negotiate a pre-suit settlement.

Remedies

Title III of the Americans with Disabilities Act limits the remedy of a private claim to injunctive relief and attorneys' fees. In other words, under 42 U.S.C. '12188(a)(1), neither compensatory nor punitive money damages is available to private plaintiffs. Thompson v. Dover Downs, Inc., 2003 U.S. Dist. LEXIS 17838 (D.Del. 2003); Adelman v. Acme Markets, 1996 U.S. Dist. LEXIS 4152 (E.D. Pa. 1996). Such damages are recoverable only in a civil action commenced by the Attorney General. 42 U.S.C. '12188(b)(2)(B).

Thus, the allowable remedies for a civil plaintiff include a temporary or permanent injunction, restraining order or other order. Injunctive relief can require that the barrier or impediment that the plaintiff encountered be removed, along with other barriers that the plaintiff may not have necessarily encountered at the place of public accommodation.

A court may also, in its discretion, award a prevailing party its reasonable attorneys' fees and costs in an action brought to enforce provisions of the ADA. 42 U.S.C. '12205. In practical terms, a prevailing plaintiff is almost always awarded fees. A plaintiff “prevails” in litigation if some benefit was received by the plaintiff and the filing of litigation was a substantial factor in bringing about the benefit. Collins v. SEPTA, 69 F. Supp. 2d 701 (E.D. Pa. 1999). However, attorneys' fees may not be awarded to a prevailing defendant unless the defendant establishes that the plaintiff's suit was totally unfounded, frivolous, or otherwise unreasonable or that the plaintiff continued litigation after it clearly became frivolous or unreasonable. Bercovitch v Baldwin Sch., Inc., 191 F.3d 8 (1st Cir. 1999).

Conclusion

In the nearly 15 years since the ADA was enacted, it has matured, developing from a broad and ambitious legislative mandate to a detailed set of guidelines, regulations and procedures. It is safe to predict that in the coming years, we will see more litigation over interpretations and exceptions to the ADA and its implementing guidelines and regulations, and thus virtually all businesses need to be aware of and acknowledge its requirements.

With the recent adoption of new Americans with Disabilities Act (“ADA”) Accessibility Guidelines, it seems likely that real property owners and managers will soon see an increase in the number of ADA-based lawsuits as both private plaintiffs and the Department of Justice seek to enforce compliance with the various changes and new provisions. This article provides a basic guide to some of the more important elements of this type of litigation, particularly cases brought by private plaintiffs.

Title III Basics

The ADA consists of five different sections. Title I is the portion most people are familiar with because it seeks to ensure that individuals with disabilities are not discriminated against in employment matters. Title III, however, is the section that is most relevant to real estate professionals, as it regulates the actions of private entities and, specifically, what private companies must do in order to accommodate the needs of the disabled.

Businesses Affected

With respect to real estate, Title III defines two types of structures that are affected by its provisions: commercial facilities and places of public accommodation.

A commercial facility is one that is 1) intended for nonresidential use and 2) whose operations will affect interstate commerce. 42 U.S.C. '12181(2). This generally encompasses all private workplaces, including those not open to the public (eg, factories, warehouses, and office buildings). Title III requires that all commercial facilities designed and built for occupancy after Jan. 26, 1993 be “readily accessible to and usable by individuals with disabilities.” In the case of commercial facilities altered after Jan. 26, 1992, the alterations must be made in such a way that the altered portions “are readily accessible to and usable by individuals with disabilities” and, where the alterations could affect usability of or access to areas which contain a “primary function” or service areas such as bathrooms, telephones, and drinking fountains, the alterations must be made “in such a manner that, to the maximum extent feasible, the path of travel to the altered area and the bathrooms, telephones, and drinking fountains serving the altered area, are readily accessible to and usable by individuals with disabilities.” 42 U.S.C. '12183.

A public accommodation is a private business entity that services and is open to the public and affects commerce. The term generally encompasses hotels, restaurants, theaters, stores, museums and recreational facilities. 42 U.S.C. '12181(7). Title III requires that all public accommodations meet the construction requirements for commercial facilities as set forth above and prohibits any person who “owns, leases (or leases to), or operates” a public accommodation from discriminating against one “on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations.” 42 U.S.C. '12182. This requires that a public accommodation not only modify, where necessary, its policies and procedures, but also that it remove architectural barriers “where such removal is readily achievable.” Id.

Who Is Responsible for Compliance?

As owners and entities responsible for design and construction of real estate projects, developers can be held liable under the ADA for violations of Title III's requirements concerning new construction and alterations to existing structures and, to the extent they continue to own, lease and/or operate the property after construction, they can be held liable for discrimination in a public accommodation.

As owners and lessors of real property, landlords are expressly liable for compliance with the ADA if they lease property that is to be used as a public accommodation. 42 U.S.C. '12181(a). Similarly, if management companies “lease” real property, they too are liable for violations. Id., 56 Fed. Reg. at 35555. Indeed, a landlord will be liable for ADA barrier violations, even if they occur solely within a tenant's leased premises; the landlord may even be a necessary party to any enforcement action. Botosan v. Paul McNally Realty , 216 F.3d 827 (9th Cir. 2000); Frotton v. Barton, 219 F.R.D. 31 (D. Mass. 2003). While a landlord may require a tenant to comply with ADA regulations, the landlord's rights are only against the tenant for indemnification. Frotton, supra.

Tenants are also necessary parties to any claim of ADA access violations that occur in their premises. Id. While normally not responsible for violations in common areas, if tenants utilize common areas for their own purposes, they may nevertheless be liable for violations resulting from their use. Emerick v. Kahala L & L, Inc., 2000 U.S. Dist. LEXIS 7374 (D. Haw. 2000) (restaurant's placement of chairs and tables in common area of shopping mall).

Whether architects and contractors can be held liable for the design and construction of a noncompliant facility is less clear. On this issue, the position of the Department of Justice is that they are encompassed within the language of the statute. See ADA Title III Technical Assistance Manual, 'III-5.1000 (found at www.usdoj.gov/crt/ada). A majority of courts has agreed and adopted the DOJ's position. See, eg, United States v. Days Inns of America , 997 F. Supp. 1080 (C.D. Ill. 1998); United States v. Ellerbe Becket, Inc., 976 F. Supp. 1262 (D. Miss. 1997). However, this position is not universal. In Paralyzed Veterans of America v. Ellerbe Becket Architects & Engineers, P.C., 945 F. Supp. 1 (D.D.C. 1996), the court held that only an entity that both designs and constructs the facility may be held liable under Title III. In Longberg v. Sanborn Theaters Inc., 2001 U.S. App. LEXIS 21065 (9th Cir. 2001), the court held that only owners, lessors, or operators can be held liable for noncompliant new construction and, therefore, the project architect was not liable under the statute. See also, United States v. Days Inns of America , 22 F. Supp. 2d 612 (E.D. Ky. 1998).

A final area of interest is the liability of franchisors for Title III violations. Consistent with many other areas of the law, such as employment discrimination, franchisors may be held liable for ADA violations if they exercise sufficient control over the franchisee so as to cause the franchisee to comply or not comply with the ADA. This was the holding in United States v. Days Inns of America , 997 F. Supp. 1080 (C.D. Ill. 1998), where the court found that the franchisor's extensive involvement in overseeing and reviewing the design and construction of a new hotel resulted in liability. The court reached the same result in United States v. Days Inns of America , 151 F.3d 822 (8th Cir. 1998), cert. denied , 526 U.S. 1016 (1999).

Private Plaintiff Litigation

Essential Elements

To bring a claim on the ground that new construction or alteration of a commercial facility fails to comply with the ADA, the plaintiff must establish that: 1) he, she or it is covered by the ADA; 2) the structure is a commercial facility; and 3) the construction or alteration is not in conformity with the ADA Accessibility Guidelines. For a claim based upon discrimination in the provision of a public accommodation, the plaintiff must establish that: 1) he, she or it is covered by the ADA; 2) the defendant's facility is a place of public accommodation; 3) plaintiff was discriminated against; and 4) the circumstances are such that it may be inferred that the discrimination was based upon a disability.

Proper Plaintiffs

For an individual to have standing to bring an ADA action, he or she must either be or about to be subjected to discrimination based upon his or her own disability, or on the ground that he or she was discriminated against because of an association with a disabled person. 42 U.S.C. '12182(b)(1)(E); Johanson v. Huizenga Holdings, Inc., 973 F. Supp. 1175 (S.D. Fla. 1997).

An individual does not have to “engage in a futile gesture,” however, and may sue if he or she has actual notice of a nonconforming public accommodation and is thus deterred from using the facility. On the other hand, a plaintiff may not be entitled to relief if he or she is not likely to visit the facility in the future because there must be a “real and immediate threat” of discrimination. Rodriguez v. Investco , L.L.C., 305 F. Supp. 2d 1278 (M.D. Fla. 2004) (plaintiff had filed more than 200 ADA related suits; intent to return was held to be disingenuous and merely for the purpose of pursuing the litigation); Blake v. Southcoast Health System, Inc., 145 F. Supp. 2d 126 (D. Mass 2001) (plaintiff had died, hence no possibility of future discrimination); Clark v. McDonald's , 213 F.R.D. 198 (D.N.J. 2003) (hereafter “ McDonald's “) (finding sufficient evidence of intent).

Similarly, a plaintiff cannot sue for discrimination against disabilities that he or she, or his or her disabled associate, does not have; that is, a paraplegic cannot sue for the failure to provide menus in Braille. McDonald's, supra. In addition, although a plaintiff does not need to encounter the barrier in question directly, he or she does not have standing for injunctive relief for a barrier of which the plaintiff was not aware at the time of the filing of the complaint. Access Now, Inc. v. South Florida Stadium Corporation , 161 F. Supp. 2d. 1357 (S.D. Fla. 2001).

An organization may sue to enforce the ADA. “An association has standing to sue on behalf of its members when: (1) one of its members otherwise would have standing to sue on his own behalf; (2) the interests at stake are germane to the purpose of the organization; and (3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Hill v. Park, 2004 U.S. Dist. LEXIS 1395 (E.D. Pa. 2004). Because the third prong is not constitutionally mandated, but rather is “prudential,” several courts have noted that even if some testimony by individual members will necessarily be required, standing may still exist. Wein v. Am. Huts, Inc., 313 F. Supp. 2d 1356 (D. Fla. 2004); McDonald's, supra.

A few courts have also recognized that an association may have standing to bring suit in its own right if the minimum constitutional requirements are met: 1) that it has suffered an injury in fact; 2) that there is a causal connection between the defendant's conduct and the injury; and 3) that a favorable decision will redress the injury. Burger King, supra. As to the injury in fact, merely incurring litigation expenses is not enough, but “frustrating” the organization's mission may be. McDonald's, 213 F.R.D. 198 (D.N.J. 2003); but see Burger King, 255 F. Supp. 2d 334 (D.N.J. 2003); Hill v. Park, 2004 U.S. Dist. LEXIS 1395 (E.D. Pa. 2004); (purely ideological injury is insufficient). Nevertheless, because the ADA requires that the plaintiff itself be subject to discrimination, it has been held that an organization that itself has not been discriminated against may never have standing to bring an ADA claim. McDonald's, supra.

Exhaustion of Administrative Remedies

In cases of employment discrimination, plaintiffs must first exhaust their administrative remedies before bringing suit. Until recently, it was unclear whether plaintiffs in Title III actions must similarly exhaust such remedies. However, two Pennsylvania courts have now ruled that there is no such requirement. Specifically, in Burkhart v. Widener Univ., Inc., 2003 U.S. App. LEXIS 9004 (3rd Cir. 2003), a case of nonprecedential value, and Hill v. Park, 2004 U.S. Dist. LEXIS 1395 (E.D. Pa. 2004), it was held that a plaintiff need not first submit his claim to the appropriate state agency before bringing suit. In addition, there is no current requirement that the plaintiff notify the defendant prior to commencing legal action or attempt to negotiate a pre-suit settlement.

Remedies

Title III of the Americans with Disabilities Act limits the remedy of a private claim to injunctive relief and attorneys' fees. In other words, under 42 U.S.C. '12188(a)(1), neither compensatory nor punitive money damages is available to private plaintiffs. Thompson v. Dover Downs, Inc., 2003 U.S. Dist. LEXIS 17838 (D.Del. 2003); Adelman v. Acme Markets, 1996 U.S. Dist. LEXIS 4152 (E.D. Pa. 1996). Such damages are recoverable only in a civil action commenced by the Attorney General. 42 U.S.C. '12188(b)(2)(B).

Thus, the allowable remedies for a civil plaintiff include a temporary or permanent injunction, restraining order or other order. Injunctive relief can require that the barrier or impediment that the plaintiff encountered be removed, along with other barriers that the plaintiff may not have necessarily encountered at the place of public accommodation.

A court may also, in its discretion, award a prevailing party its reasonable attorneys' fees and costs in an action brought to enforce provisions of the ADA. 42 U.S.C. '12205. In practical terms, a prevailing plaintiff is almost always awarded fees. A plaintiff “prevails” in litigation if some benefit was received by the plaintiff and the filing of litigation was a substantial factor in bringing about the benefit. Collins v. SEPTA , 69 F. Supp. 2d 701 (E.D. Pa. 1999). However, attorneys' fees may not be awarded to a prevailing defendant unless the defendant establishes that the plaintiff's suit was totally unfounded, frivolous, or otherwise unreasonable or that the plaintiff continued litigation after it clearly became frivolous or unreasonable. Bercovitch v Baldwin Sch., Inc., 191 F.3d 8 (1st Cir. 1999).

Conclusion

In the nearly 15 years since the ADA was enacted, it has matured, developing from a broad and ambitious legislative mandate to a detailed set of guidelines, regulations and procedures. It is safe to predict that in the coming years, we will see more litigation over interpretations and exceptions to the ADA and its implementing guidelines and regulations, and thus virtually all businesses need to be aware of and acknowledge its requirements.