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<b><i>In the Spotlight:</i></b> Frustration with ADA Lawsuits
No matter what side they are on, those persons involved in disability access lawsuits have one thing in common ' frustration. People with disabilities are frustrated when they meet obstacles in parking, shopping or using a restroom because of the way a building has been built or designed. Landowners, and particularly shopping center owners, are frustrated by the number of frequent suits demanding big money and attorneys' fees. There is now a cottage industry surrounding the filing of ADA lawsuits that has spread from Florida and California to the rest of the country. If it is not in your town or your state, it will be soon. Many of these claims are being brought by serial litigants who work frequently with the same lawyers.
In almost every case, the first notice that the landowner, shopping center or other business entity has of the complaint is the filing of the federal lawsuit. Many of the cases are quickly settled, with the business owner paying less than $5,000 and agreeing to fix whatever was wrong. The ADA was passed during the administration of George H.W. Bush and he seemed to predict some of these unintended consequences.
However, Congress at the time did not wish to add bureaucracy to be required to enforce the law. Our courts also agree that enforcement could be handled through private lawsuits. Several bills seeking to remedy or reform the ADA have been proposed by Rep. Mark Foley (R-FL), but they have failed to clear committee. There is hope that perhaps Congress will consider some reasonable changes that will at the very least require notice to the landowner, and an opportunity to remedy within a reasonable time, before they are exposed to an arbitrarily filed federal lawsuit.
How Can You Protect Yourself from These Cases?
Conduct a survey of your facilities before any suit is filed. This is the best and most proactive way to avoid litigation. Choose a professional with extensive ADA experience to perform this survey. There is a great disparity in knowledge and experience among architects and contractors regarding the requirements.
Prepare an ADA compliance plan as soon as possible. The plan is usually a survey with notes about what each barrier or compliance issue is; the cost to remediate each; and the projected completion dates. Having a plan “underway” is a good defense to a potential claim. Even if you have not completed your barrier removal plan, it is possible that an injunction would not be appropriate where you can establish that you have taken affirmative action.
Aggressively put the plaintiffs on alert by putting their fees at risk. The ADA is a fee-shifting statute. Like many other Civil Rights cases, the prevailing party can receive attorneys' fees. Usually in these cases, it is the prevailing plaintiff who gets fees and costs. However, if you can pick a case and prevail on the issues, you can obtain your attorneys' fees and costs from the plaintiff. Consequently, it is important to pick your battles. A United States Supreme Court case, Buckhannon Board and Care Home, Inc., et al. v. West Virginia Department of Health and Human Resources, et al., 532 U.S. 598, 121 S. Ct. 1835 (2001), has changed the balance of power in some of the litigation against private property owners. Buckhannon eliminated the catalyst theory of the prevailing party discrimination in cases where damages are not available. Fortunately, damages are not available against private property owners. Public facilities and publicly owned facilities, however, are exposed to damages to the plaintiff. In private cases (Title III), the recovery is limited to obtaining a cure to the deficiencies and attorneys' fees for the plaintiff.
Challenge the standing of the plaintiff. Several cases have been successful in this regard. For instance, a person challenging whether or not Braille elevator plaques are missing should not be made by persons who are not blind.
Not readily achievable. Buildings built pre-1992 are not exempt from the provisions of the Act, as many think. Older buildings must provide remediation changes that are readily achievable, including removal of barriers to provide accessible paths. If you can prove that these are not readily achievable, then you can win on the dispute. “Readily achievable” is defined as “easily accomplishable and able to be carried out without much difficulty or expense.” This defense will apply to architectural barriers and communication barriers that are structural in nature that pre-existed the effective date.
It would be a fundamental alteration. Title III of the Act makes it illegal to fail “to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations.”
It is a threat to health and/or safety. The standard provides that “no measure shall be taken, however, that poses a significant risk to the health and safety of individuals with disabilities, or others.”
It is an undue burden. This defense is defined by regulations provided by the Treasury Department as “significant difficulty or expense.”
It is not a place of public accommodation. Most of Title III only applies where there are commercial places of public accommodation. It does not apply to commercial facilities or multi-family housing facilities that are not also places of public accommodation. New construction and alterations requirements do apply to commercial facilities that are not places of public accommodation.
Other Potential Defenses; Defense Strategies
Prevailing party. Another good defense is to complete all of your cures and remedies before the actual trial. In this instance, you could become the prevailing party, since there are no deficiencies.
Settle early. Until such time as you have in place a proactive plan to remedy any ADA obstacles, it is still the best course of action to strike the best settlement you can at the outset. This way, you can avoid or reduce attorneys' fees that will inevitably have to be paid to the plaintiff if he has identified a violation of the Act.
Consider an “Offer of Judgment” at the very outset of the lawsuit. If you offer to fix all of the violations and pay reasonable fees of a few thousand dollars at the outset of the litigation, this can freeze your exposure and often drive a quicker settlement if the plaintiff is not willing to be reasonable.
Subrogation. If your building or property has been recently constructed and/or designed, it is possible to make a subrogation claim against your architects, designers and perhaps your contractors for not making your property compliant. It is not, however, possible to bring a third party action in the federal ADA action. These suits would have to be brought in state or federal court on a separate basis. Nevertheless, you should notify your contractors and designers as soon as you receive a lawsuit and advise them that you expect their help in remedying the situation and bearing the costs of settling the case.
Legislative reform. Consider contacting your Congressman and letting him or her know how important it is that you favor reasonable reform of the Act to provide an opportunity to cure any defects before litigation. It is also more economical to hire lawyers who already have experienced defending ADA cases. Otherwise, you will pay top dollar to get your lawyer up-to-speed.
'
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No matter what side they are on, those persons involved in disability access lawsuits have one thing in common ' frustration. People with disabilities are frustrated when they meet obstacles in parking, shopping or using a restroom because of the way a building has been built or designed. Landowners, and particularly shopping center owners, are frustrated by the number of frequent suits demanding big money and attorneys' fees. There is now a cottage industry surrounding the filing of ADA lawsuits that has spread from Florida and California to the rest of the country. If it is not in your town or your state, it will be soon. Many of these claims are being brought by serial litigants who work frequently with the same lawyers.
In almost every case, the first notice that the landowner, shopping center or other business entity has of the complaint is the filing of the federal lawsuit. Many of the cases are quickly settled, with the business owner paying less than $5,000 and agreeing to fix whatever was wrong. The ADA was passed during the administration of George H.W. Bush and he seemed to predict some of these unintended consequences.
However, Congress at the time did not wish to add bureaucracy to be required to enforce the law. Our courts also agree that enforcement could be handled through private lawsuits. Several bills seeking to remedy or reform the ADA have been proposed by Rep. Mark Foley (R-FL), but they have failed to clear committee. There is hope that perhaps Congress will consider some reasonable changes that will at the very least require notice to the landowner, and an opportunity to remedy within a reasonable time, before they are exposed to an arbitrarily filed federal lawsuit.
How Can You Protect Yourself from These Cases?
Conduct a survey of your facilities before any suit is filed. This is the best and most proactive way to avoid litigation. Choose a professional with extensive ADA experience to perform this survey. There is a great disparity in knowledge and experience among architects and contractors regarding the requirements.
Prepare an ADA compliance plan as soon as possible. The plan is usually a survey with notes about what each barrier or compliance issue is; the cost to remediate each; and the projected completion dates. Having a plan “underway” is a good defense to a potential claim. Even if you have not completed your barrier removal plan, it is possible that an injunction would not be appropriate where you can establish that you have taken affirmative action.
Aggressively put the plaintiffs on alert by putting their fees at risk. The ADA is a fee-shifting statute. Like many other Civil Rights cases, the prevailing party can receive attorneys' fees. Usually in these cases, it is the prevailing plaintiff who gets fees and costs. However, if you can pick a case and prevail on the issues, you can obtain your attorneys' fees and costs from the plaintiff. Consequently, it is important to pick your battles. A United States Supreme Court case, Buckhannon Board and Care Home, Inc., et al. v. West
Challenge the standing of the plaintiff. Several cases have been successful in this regard. For instance, a person challenging whether or not Braille elevator plaques are missing should not be made by persons who are not blind.
Not readily achievable. Buildings built pre-1992 are not exempt from the provisions of the Act, as many think. Older buildings must provide remediation changes that are readily achievable, including removal of barriers to provide accessible paths. If you can prove that these are not readily achievable, then you can win on the dispute. “Readily achievable” is defined as “easily accomplishable and able to be carried out without much difficulty or expense.” This defense will apply to architectural barriers and communication barriers that are structural in nature that pre-existed the effective date.
It would be a fundamental alteration. Title III of the Act makes it illegal to fail “to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations.”
It is a threat to health and/or safety. The standard provides that “no measure shall be taken, however, that poses a significant risk to the health and safety of individuals with disabilities, or others.”
It is an undue burden. This defense is defined by regulations provided by the Treasury Department as “significant difficulty or expense.”
It is not a place of public accommodation. Most of Title III only applies where there are commercial places of public accommodation. It does not apply to commercial facilities or multi-family housing facilities that are not also places of public accommodation. New construction and alterations requirements do apply to commercial facilities that are not places of public accommodation.
Other Potential Defenses; Defense Strategies
Prevailing party. Another good defense is to complete all of your cures and remedies before the actual trial. In this instance, you could become the prevailing party, since there are no deficiencies.
Settle early. Until such time as you have in place a proactive plan to remedy any ADA obstacles, it is still the best course of action to strike the best settlement you can at the outset. This way, you can avoid or reduce attorneys' fees that will inevitably have to be paid to the plaintiff if he has identified a violation of the Act.
Consider an “Offer of Judgment” at the very outset of the lawsuit. If you offer to fix all of the violations and pay reasonable fees of a few thousand dollars at the outset of the litigation, this can freeze your exposure and often drive a quicker settlement if the plaintiff is not willing to be reasonable.
Subrogation. If your building or property has been recently constructed and/or designed, it is possible to make a subrogation claim against your architects, designers and perhaps your contractors for not making your property compliant. It is not, however, possible to bring a third party action in the federal ADA action. These suits would have to be brought in state or federal court on a separate basis. Nevertheless, you should notify your contractors and designers as soon as you receive a lawsuit and advise them that you expect their help in remedying the situation and bearing the costs of settling the case.
Legislative reform. Consider contacting your Congressman and letting him or her know how important it is that you favor reasonable reform of the Act to provide an opportunity to cure any defects before litigation. It is also more economical to hire lawyers who already have experienced defending ADA cases. Otherwise, you will pay top dollar to get your lawyer up-to-speed.
'
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