ADA Reform: Applying the Brakes on Drive-by Serial Plaintiffs Posing as Legitimate ADA Advocates
Over the last decade, there has been an influx of lawsuits for purported violations of Title III of the Americans with Disabilities Act of 1990 (“ADA”) being filed across the country, particularly in California and in Florida.1 Unfortunately, one of the primary reasons for this wave of ADA cases is not due to increases in actual discrimination cases of disabled individuals; but rather, by the growing greed of hungry lawyers preying on businesses located in busy, high traffic areas.2
The top allegations in contravention of the ADA include the existence of physical access barriers in hotels, retail stores and shopping plazas; non-compliant parking lots which do not have accessible and/or adequate handicap parking spaces, ramps or signage; and public pools that fail to provide access (pool lifts) to disabled individuals.3 Moreover, the Department of Justice’s (“DOJ”) ADA Standards for Accessible Design, which is used by complainants’ attorneys and their experts to identify and list ADA violations, contains hundreds of requirements, ranging from the height of bar countertops and the exact placement of bathroom toilet grab bars, to the type of permissible entrance store door handles, making compliance with the ADA difficult and litigation virtually unavoidable.4
The problem with the ADA:
At an alarming rate, serial Plaintiffs are filing countless ADA lawsuits without first offering their targeted businesses an opportunity to make readily achievable repairs.5 Essentially, businesses are being thrust into litigation without any prior notice and many times are forced to settle and pay double attorneys’ fees and costs (to defend themselves and to pay for the Plaintiff’s lawyers) in addition to paying for repairs to their property.6 This litigation abuse stems from the lack of any notification provision in the ADA.
As it is currently written, the ADA encourages lawsuits to be filed because there is no real downside for complainants to sue. There is no pre-suit requirement or cure period before commencing an ADA action; plaintiffs are entitled to recover their attorneys’ fees and costs if they prevail; it is likely that at least one ADA violation exists (no matter how small); and, if the business being sued elects to defend itself and fight, it faces the uncertainty of ligation and, even if it prevails, it cannot recover its legal fees and costs. Having the odds stacked against them, it is not shocking to find that most businesses settle ADA-related cases.
What’s more, after settling, small businesses are sometimes left unable to make the necessary repairs to be ADA compliant (which is the fundamental purpose of the ADA), because they often run out of money after paying substantial legal fees in litigation (which often ranges from $5,000 to over $12,000).7
Is anything being done by Congress regarding ADA reform?
In 2001, Florida Republican congressman Mark Foley introduced legislation that would require Title III ADA Plaintiffs to provide written notice of any purported ADA violation to businesses and allow 90 days for repairs to be made prior to filing an action.8 However, strong opposition from ADA rights activist groups prevented the bill from being passed into law.
More recently, there have been three ADA reform bills brought forth before the US Congress. The ADA reform bills being considered by the 114th Congress are, as follows:
1. H.R. 3765: ADA Education and Reform Act of 2015, 9 sponsored by Representative Ted Poe (R) from Texas’ 2nd congressional district;
2. H.R. 241: ACCESS (ADA Compliance for customer Entry to Stores and Services) Act of 2015,10 sponsored by Representative , Ken Calvert (R) from California’s 42nd congressional district; and
3. H.R. 4719: Correcting Obstructions to Mediate, Prevent, and Limit Inaccessibility Act or the COMPLI Act,11 sponsored by Representative Jerry McNerney (D) from California’s 9th congressional district.
The common theme with the foregoing bills is that they each propose to amend the ADA to include a written notice requirement and a cure period, ranging from 60 days to 90 days to remove any barriers or correct the ADA violation(s) before a private civil action may be brought.
Challengers to ADA reform:
Advocacy groups, including the National Disability Rights Network (NDRN), the National Council on Independent Living (NCIL), the American Association of People with Disabilities (AAPD), the Association of Programs for Rural Independent Living (APRIL), the Paralyzed Veterans of America (PVA), and other disability rights groups are partnering to advocate against what they deem to be “unnecessary change” to the ADA.12 These groups have issued a series of letters to Congress, opposing the three bills that seek to limit the ADA’s broad power to initiate lawsuits against non-complying business establishments.
Challenging the legitimacy of these ADA lawsuits will almost always exceed the cost of simply settling them and so, in many instances, businesses will continue to settle rather than fight and spend more time and money in litigation. This will naturally, cause more litigation to be brought against more and more businesses. As long as litigation is the only means of enforcing the ADA, the majority of the money will go to lawyers and not to making the necessary repairs and improvements to commercial property.
Take Action:
Until the ADA is reformed, the best practice to prevent ADA lawsuits is to be proactive. It is wise to retain an ADA consultant to conduct an ADA inspection of your commercial property and provide you with a detailed analysis of any existing violations. Even though the commercial property may have been built in compliance with the prior 1991 ADA Standards, it is still a good idea to make all feasible and readily achievable repairs to be compliant with the 2010 ADA Standards. Also, it is important to document all repairs and modifications made so, in the event that an ADA lawsuit is later filed against your business, you can assert that the property was already undergoing or underwent improvements to conform with the ADA.13
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1 Minh N. Vu and Susan Ryan, ADA Title III Lawsuits Surge by More Than 63%, to Over 4400 In 2014, ADA Title III News & Insights (last visited September 26, 2016), http://www.adatitleiii.com/2015/04/ada-title-iii-lawsuits-surge-by-more-than-63-to-over-4400-in-2014/. As of mid-2015, California leads the country with the most ADA Title III actions filed, with Florida coming in at a close second. New York, Pennsylvania and Alabama were the following states forming the top five states with the largest increases in ADA lawsuits.
2 Walter Olson, The ADA Shakedown Racket, The Americans with Disabilities Act has Spawned a Sleazy Lawsuit Industry, City Journal (last visited September 26, 2016), http://www.city-journal.org/html/ada-shakedown-racket-12494.html; Amy Shipley and John Maines, South Florida Leads Nation in Controversial Disability Lawsuits, Sun Sentinel, (last visited September 26, 2016), http://articles.sun-sentinel.com/2014-01-11/news/fl-disability-lawsuits-strike-sf-20140112_1_plaintiffs-attorneys-lawsuits.
3 Minh N. Vu and Susan Ryan, ADA Title III Lawsuits Surge by More Than 63%, to Over 4400, In 2014, ADA Title III News & Insights (last visited September 26, 2016), http://www.adatitleiii.com/2015/04/ada-title-iii-lawsuits-surge-by-more-than-63-to-over-4400-in-2014/.
4 For more information on the DOJ’s ADA Standards, please visit:
ADA.gov, DOJ Civil Rights Division, https://www.ada.gov/2010ADAstandards_index.htm
United States Access Board, https://www.access-board.gov/guidelines-and-standards/buildings-and-sites/about-the-ada-standards/guide-to-the-ada-standards/chapter-1-using-the-ada-standards
5 Sun Sentinel Editorial Board, Rein in Runaway Lawsuits on Small Businesses, Sun Sentinel (last visited September 26, 2016), http://articles.sun-sentinel.com/2014-01-26/news/fl-editorial-disability-lawsuits-dv-20140126_1_small-businesses-ada-federal-lawsuits.
“Readily achievable” under the ADA means that the barrier removal sought must be “easily accomplishable and able to be carried out without much difficulty or expense.” Whether a removal is “readily achievable” depends on various factors, including: the nature and the cost of the modification; the overall financial resources of the business being accused of violating the ADA; the number of employees the business has; and the impact of the modification on the operation of the business. Also, what may be “readily achievable” for a large company is not necessarily readily achievable for a small or local business. For more information on readily achievable barrier removal, please visit: https://www.ada.gov/racheck.pdf
6 Mandy Miles, Judge Dismisses two ADA Lawsuits; No Fees Awarded to Cohen, Florida Keys, KeysNews.com (last visited September 26, 2016), http://keysnews.com/node/71599.
7 Id. (“The majority of … ADA-related lawsuits end with a confidential settlement agreement…[i]t’s the cost of doing business”… “[a]nd the way the law is written, there is no remedy for this type of serial filing.”); Sun Sentinel Editorial Board, Rein in Runaway Lawsuits on Small Businesses, Sun Sentinel (last visited September 26, 2016), http://articles.sun-sentinel.com/2014-01-26/news/fl-editorial-disability-lawsuits-dv-20140126_1_small-businesses-ada-federal-lawsuits (“They don’t care if you fix it or not. [The businesses] pay between $5,000 and $12,000 and it goes away. People are taking complete advantage. It’s a moneymaker. It has nothing to do with compliance.”).
8 H.R. 914/S. 873 the ADA Notification Act was introduced on March 7, 2001 to the House of Representatives but was not enacted into law. Florida Republican Congressman Mark Foley introduced this bill to prevent a growing number of lawyers who were generating huge sums in legal fees for pointing out accessibility violations by businesses when often simple fixes would bring properties into compliance with the ADA’s accessibility standards.
9 For more information on this bill, please visit: https://www.congress.gov/bill/114th-congress/house-bill/3765
10 For more information on this bill, please visit: https://www.congress.gov/bill/114th-congress/house-bill/241
11 For more information on this bill, please visit: https://www.congress.gov/bill/114th-congress/house-bill/4719
12 The Advocacy Monitor, ADA Notification Bills: And Then There Were Three (last visited September 26, 2016), http://www.advocacymonitor.com/ada-notification-and-then-there-were-three/.
13 In the event that the property was built prior to 1993, the safe harbor exemption of the 2010 ADA Standards may apply. For more information, please visit: https://www.ada.gov/regs2010/factsheets/title3_factsheet.html