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By: Ben Mathis
Title III of the Americans with Disabilities Act (ADA), which covers “public accommodations,” is not widely known to the general public. Property owners, however, are becoming too familiar with its requirements as they confront an avalanche of lawsuits for non-compliance.
Title III includes the ADA’s implementing Accessibility Guidelines that essentially set building standards and architectural requirements. The Guidelines are designed so that a facility is “accessible” and has no “barriers” to disabled people. Most new facilities are built to meet the Guidelines in effect at the time of construction.
The Guidelines continue to change, however, so that even newer buildings may no longer be compliant. Also, few older facilities are even minimally compliant if they were constructed before the ADA was enacted in 1990. In this regard, there is no “grandfathering” of buildings regardless of how old they are. Today, all buildings, no matter when constructed, have to meet the current ADA standards if doing so is “readily achievable,” which is a relatively low threshold that can require significant compliance obligations.
While states like California and Florida have seen a number of Title III suits in recent years, Georgia property owners now are experiencing ADA lawsuits by “serial” filers. With no warning, an allegedly disabled person, using the same lawyer in case after case, files a federal lawsuit against the owner of a shopping center, retail store, hotel, or restaurant. (i.e. a “place of public accommodation”). The lawsuit typically claims that the disabled person encountered ADA violations such as insufficient handicap parking, lack of curb cuts or ramps, toilets that are too low, hotel rooms with improper door knobs, etc.
These lawsuits commonly seek an injunction to force the owner to comply with the ADA Guidelines and attorney’s fees for the cost of bringing the lawsuit. Not surprisingly, given the threat of having to comply with all ADA requirements, most cases settle quickly with an agreement to make some changes to the facility and a fairly significant payment of attorney’s fees to the lawyer bringing the suit. Often the plaintiff is himself a lawyer who can “share” in the attorney fee award.
One example of a serial filer in Georgia is an individual plaintiff who has filed 51 lawsuits since 2009. Each time this person uses the same out of state lawyer. In fact, there are several law firms around the country that are filing hundreds of these lawsuits, often using the same plaintiff and making almost identical factual allegations.
Not surprisingly, property owners (and their insurers) who encounter multiple lawsuits of this type (particularly from the same plaintiff and lawyer) are highly frustrated with these cases. They believe that, if the plaintiff was sincere about correcting “barriers,” he would at least approach the owner before filing the lawsuit. Since payment of the plaintiff’s attorney’s fees is always a condition of settlement, property owners feel like the cases are merely a “set up” driven solely by lawyers seeking a quick and unjustified payment of fees to “drop the case and move on.”
Under the current Guidelines, property owners are highly vulnerable to these suits if they have not made some efforts at complying with obvious ADA issues. Where clear ADA violations are present, owners know it is not cost effective to fight these claims. Even where the violations are arguable, owners who have not undertaken specific actions in anticipation of these suits find the cost of defense exceeds the cost of making a few of the changes sought and paying the plaintiff’s attorney to settle.
As these cases continue to mount, however, property owners, and particularly owners of multiple facilities, are finding it cost effective and necessary to take preventive steps. By doing so, they can put themselves in a far stronger position to defend what is seemingly an inevitable ADA claim and also send the serial filer a message that they will not “roll over” every time a suit is brought.
Essential steps property owners can take include the following:
1) Understand the ADA Requirements
The Department of Justice updated the ADA’s Accessibility Guidelines recently and they became enforceable in March of 2012. However, it cannot be overemphasized that the Guidelines do not require full compliance with every single rule for structures which existed prior to the rules. Instead, properties only must remove “architectural barriers” if the removal of these barriers is readily achievable, which requires a balancing test of the cost of removing the barrier, the wealth of the property owners, and related factors.
The first key preventive step for property owners is to review the Accessibility Guidelines. Owners should determine when the property was built or updated and understand the obvious ADA compliance issues. Owners cannot assume that simply because a property was built long ago that there are not compliance challenges. Likewise, even relatively new properties may now be out of compliance with the latest ADA Guideline changes.
2) Retain an Expert Before Litigation
While it sounds expensive, consulting with an ADA compliance expert and having the expert do an audit of the property can be very cost effective. Audits can be completed for relatively small cost, especially considering the cost of a single ADA lawsuit. An expert can identify obvious ADA issues that are easily correctable so that the property is not blatantly in violation. An expert also can help justify not making more expensive changes because they are not “readily achievable.”
By having an expert audit and justify not making ADA changes, a property owner is in a far stronger position to resist serial filer lawsuits. In our experience, serial filers are not interested in pursuing cases where owners have legitimate pre-litigation reports by qualified experts. These cases are often dismissed when the owner can show pro-active efforts of this type.
3) Correct Obvious Non-Compliance Issues
Clearly, the serial ADA lawsuit filer is more prone to sue property owners who have apparent violations. By “advertising” non-compliance, owners send the message that they are an easy target. Visible signs of good faith compliance will deter serial filers who will move on to easier defendants.
4) Develop a Plan For Compliance
Virtually every property owner has a plan for regular maintenance and renovation. In light of the threat of ADA lawsuits, ADA compliance should be a part of every owner’s business plan. By identifying ADA issues before litigation, owners can make reasonable business judgments and build accommodation upgrades into a multi-year budget. This alone helps justify that changes are being made on a “readily achievable” basis. Owners should document the entire process and update the compliance plan after each change is made.
In summary, while there may be no way to entirely avoid a Title III lawsuit, clearly there are steps owners can take to minimize the likelihood and better position themselves for a positive outcome. By doing so, the owners can minimize their long term costs and avoid the unpleasant position of having no viable defense to the ambush ADA lawsuit.