Stopping Drive-By ADA Lawsuits in Their Tracks: How to Defend Against ADA Litigation
The Americans with Disabilities Act (ADA) was enacted in 1990 to ensure that all persons with disabilities have access to places of “public accommodations.” Examples of places of public accommodations include places of lodging, entertainment, recreation, restaurants, bars, theaters, stores, health clubs, and hotels. While the ADA was enacted with pure intentions, it has given rise to a phenomena of “drive-by” lawsuits wherein ADA plaintiffs and their attorneys take aim at several technical, yet harmless, violations of the ADA in order to enforce injunctive relief against the business and obtain attorneys’ fees. The frequency of “drive-by” lawsuits is further increased and incentivized in California due to a state antidiscrimination law called the California Unruh Act which allows plaintiffs to obtain a minimum of $4,000 in statutory damages for each time an ADA plaintiff visits or is deterred from visiting a particular place of public accommodation due to a violation of the ADA.
“Drive-by” lawsuits are even further encouraged under the ADA due to the fact that Title III of the ADA allows anyone with a disability to assert a claim and that under the ADA, a person with a disability is defined broadly to include any person suffering from any physical or mental impairment that substantially limits one or more of their major life activities, including persons who have a past history or record of such impairment. Even more generous is the fact that the ADA incorporates any persons who are simply perceived as having an impairment. Furthermore, the ADA does not provide for any level of culpability; it is a strict liability statute meaning that it does not matter whether a business intended to create an accessibility barrier – as long as a barrier exists on the business’ premises, the owner or operator who has control over such premises is liable under the ADA and likely, under the California Unruh Act as well.
The reason why these ADA lawsuits are called “drive-by” lawsuits is because often, the plaintiffs in such cases have not actually visited the business or personally encountered any actual ADA violation, rather, they may have driven by and witnessed the ADA violation from a distance. The five most typical violations claimed in a “drive-by” lawsuit are:
1. Parking Violations. Often, an ADA plaintiff will make a claim that a business has incorrectly marked its handicapped spaces. Such incorrect marking could be related to the parking space itself, the aisle, or the signage. Another issue plaintiffs often site is the fact that the business’ parking lot has an inadequate number of handicapped spaces, or such spaces are improperly located.
2. Accessible Route. An ADA plaintiff may also allege that accessible routes to the establishment are not in compliance with the ADA or state accessibility laws because the routes lack the appropriate signage, have an improper slope, or contain other hazards.
3. Curb Ramps. A “drive-by” ADA plaintiff may also allege that the curb ramps on the business premises contain violations such as not having the proper width or slope required of them under ADA standards.
4. Doors. A common violation cited by ADA plaintiffs with respect to doors are doors that: (1) are too difficult to open; (2) close too quickly; and (3) are made with hardware that requires tight grasping, pinching, and twisting of the wrist.
5. Signage. Another common violation is that public accommodations often lack proper signage denoting such things as accessible entrances for disabled individuals.
While the violations cited above are the most common with respect to a “drive-by” ADA lawsuit, there are also often times where an ADA plaintiff will allege violations within the business premises itself, meaning those that cannot be spotted simply by driving by the premises, but were cited while a plaintiff was actually inside the premises. The five most typical violations claimed by an ADA plaintiff who has walked into a business are:
1. Customer Service Counters. Often, a customer service counter may be too high or lack a sufficient clear space at a lower level to accommodate disabled individuals.
2. Customer Seating/Tables. A business must provide accessible seating and tables in each separate area of its establishment. For instance, if a restaurant has an indoor dining area and an outdoor patio dining area, accessible, ADA compliant seating, must be available in both areas.
3. Drinking Fountains. A common violation cited at most business premises is the fact that drinking fountains are often too high to be used by disabled individuals in wheelchairs.
4. Bathrooms. The most common ADA violations noted in bathrooms are incorrect dimensions that make them difficult to use by wheelchair users. Additionally, mirrors and/or sink fixtures in bathrooms may also not be placed at the correct height thereby triggering another ADA violation.
5. Visual Alarms. The fifth most common violation often triggering an ADA lawsuit is the fact that a business may often not have a visual component to their fire alarm system for the benefit of those individuals who may be hearing-disabled.
Defending/Minimizing Exposure to ADA Litigation
Certified Access Specialist (CASp) Inspections
One major form of assistance to business owners in defending against an ADA lawsuit is getting CASp inspected. A business can gain CASp inspected status by having an expert in the field of construction-related accessibility inspect their premises. By having a CASp inspection done, a business served with an ADA lawsuit will be granted the status of a “Qualified Defendant.”
If a business obtains “Qualified Defendant” status, it may gain access to certain protections including: (1) a 90 day stay of a lawsuit which would grant the business time to correct any violations and, in the process, deny the prosecution the opportunity to rack up attorneys’ fees and court costs which would add to a defendant’s potential liability in an ADA lawsuit; (2) a Mandatory Early Evaluation Conference (EEC) within 35 days; an EEC is a court-run mediation between the parties that is intended to facilitate negotiations and expedite a settlement; and (3) requiring the plaintiff to provide a basis for any claimed violations as cost 15 days prior to the occurrence of the EEC, (4) a reduction in the minimum statutory damages from $4,000 per occurrence to $1,000 per occurrence.
Additionally, any business displaying a certificate of CASp inspection will likely discourage a plaintiff from identifying the business as an “easy target” for a drive-by ADA lawsuit.
In defending and responding to an ADA claim, it is always beneficial to try and reach a settlement as quickly as possible. However, this does not mean that a business should agree to pay the first demand offer made by a plaintiff. When a business receives an ADA complaint, the first thing that should be done is to have an inspection done. As noted above, it is highly preferable for a business to take preventative measures and have a CASp inspection done prior to being served with an ADA lawsuit. However, if that is not feasible for a business, then once an ADA lawsuit is served, that business should contact an ADA experienced contractor to survey the business premises. The contractor should be able to advise the business as to whether the claims made in the complaint are legitimate and, as an added benefit, may also point out other ADA violations not cited in the complaint that might otherwise be the basis for a future ADA lawsuit by another, or even the same, plaintiff. If the results of the survey say that the complaint has merit, it is at that point that it may be in the business’ best interest to enter settlement discussions with the plaintiff and attempt to settle the case before a lawsuit is formally filed.
If pre-lawsuit settlement discussions do not work and a lawsuit is filed, then one way to defend against an ADA complaint is to raise the defense that the plaintiff’s claims are moot. A defendant can raise the defense of mootness by remediating the violations alleged in the plaintiff’s complaint. Therefore, when served with a complaint in an ADA lawsuit, it would be to the defendant’s benefit to begin correcting as many ADA violations as possible and have the claim dismissed as moot. Doing so would minimize the court’s need to grant injunctive relief to the plaintiff and minimize the defendant’s exposure to the plaintiff for attorneys’ fees.
It should be noted however that under the California Unruh Act, a plaintiff will most likely also have a claim for statutory damages and such claim cannot be dismissed under the doctrine of mootness. However, remedying any ADA violations and making the claim for injunctive relief under the ADA moot can take away a federal court’s subject matter jurisdiction and force the plaintiff to bring their claim for statutory damages under state law in state court.
Another related method of defending against an ADA claim is to challenge the plaintiff’s standing to assert a claim. Asserting a defense that the plaintiff lacks standing to bring a claim for any alleged ADA violations is particularly useful in situations where remedying all of the alleged violations may be extremely costly for a defendant or where the plaintiff does not specifically identify the ADA violations contained on the business premises. Under the defense of standing, a defendant need not actually remedy any ADA violations contained on the premises but rather, a defendant simply needs to show that the plaintiff: (1) has not suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable decision.
With regard to an ADA lawsuit, a plaintiff can show that they have suffered an injury in fact if they can allege that there is a threat of present or future harm that the alleged ADA violations are likely to deter the plaintiff from visiting the premises in the future and that the plaintiff actually does intend to return to the premises at a future date. Proving intent is extremely easy for most plaintiffs as all a plaintiff needs to do is state, in their complaint, that they intend to return to the premises at a future date. A second way a plaintiff can prove injury in fact is through proving deterrence. An ADA plaintiff can establish injury in fact merely by showing that the fact they are aware of a particular ADA violation on a business’ premises has deterred them from visiting that business. Essentially, the plaintiff’s awareness of an ADA violation is their injury-in-fact. Therefore, because a plaintiff must only satisfy a low burden to show standing, it is often in a defendant’s best interest to first try and remedy as many ADA violations as possible to render the plaintiff’s claims moot before asserting a lack of standing.
Motion to Stay
A third potential method of defending against an ADA lawsuit is to file a motion to stay the case. A motion to stay may prove cost effective for many defendants as it will allow for them to stay a case while they remedy the alleged ADA violations. The motion to stay will essentially limit the defendant’s liability for attorneys’ fees and court costs while also providing them with the opportunity to remedy the alleged ADA violations and thereby render the plaintiff’s claims moot.
The ultimate fact is that every ADA case is different. In California, virtually all ADA cases present problems of efficiency for defendants. However, as discussed above, there are ways in which defendants can minimize the risks and liabilities connected with such litigation and it is always best to speak to an attorney about a business’ potential liability under the ADA and how best they can comply with the ADA to mitigate future risks of a lawsuit. For those businesses who have already been sued, every ADA case is different, and an attorney can help decide how best to respond to an ADA lawsuit given the specific circumstances around the complaint.
The attorneys at Thakur Law Firm, APC are knowledgeable in the latest ADA law compliance issues, and they can assist your business in ensuring you do not run afoul of the ever-changing contours of the ADA.