ADA lawsuit abuse may soon end

By David J. Canupp

Small business owners are often surprised to learn that the Americans With Disabilities Act (ADA) provides for very specific architectural standards applicable to the physical locations where businesses operate. These standards are prescribed by the Department of Justice in a manual referred to as the “ADAAG,” or ADA Accessibility Guidelines. They are incredibly detailed, with down-to-the-inch requirements for things such as urinals and toilet paper dispensers. They prescribe the appropriate slope and dimensions of parking spaces, and the type of permissible door handles and locks. They even prescribe the range of appropriate heights for signs and the size of the lettering on signs used at small businesses. There is no funding available to help small businesses meet the requirements of the ADAAG, but violations can be quite costly, as set out below.

Here in Huntsville, many unsuspecting small businesses have become the target of lawsuits and letters sent by ADA lawyers who claim to represent disabled individuals denied appropriate access to local businesses because of so-called “access barriers” (architectural barriers). I am often called to defend these lawsuits and respond to these letters. Too often, the alleged violations are minor, and could be fixed by a business owner him- or herself if the business owner were simply given a chance. But therein lies the problem: It seems that lawyers who represent disabled individuals in these matters usually elect against giving the business owner the chance to remediate the problems, instead choosing to file a federal lawsuit against the business.

Although the ADA does not provide for monetary damages against small businesses (see 42 U.S.C. § 12188(a)), attorneys who represent disabled individuals in these matters can seek attorneys’ fees and costs from the small business owner, in what the law refers to as “fee shifting.” These fees can be exorbitant, and if there are violations at the physical locations of the business, it is difficult to avoid the obligation to pay them. As a result, small business owners who never realized they had code violations at their locations and would be more than happy to correct them must pay not only to make their place of business accessible, but also must pay the lawyer suing them and the lawyer they hired to defend them.

For years now, I have been astonished that Congress didn’t step in to correct this miscarriage of justice by requiring that ADA lawyers give small business owners a “cure period” before seeking attorneys’ fees. At long last, however, changes may be coming to ADA litigation.

On July 7, 2016, the Judiciary Committee of the U.S. House of Representatives sent a bill (H.R. 3765) to the floor of the House to address ADA lawsuit abuse. If passed by both the House and Senate and signed by the President, the bill will become known as the ADA Education and Reform Act.

What is ADA lawsuit abuse?

ADA lawsuit abuse typically involves a single plaintiff filing multiple lawsuits against many businesses in a community and sometimes governmental facilities. The plaintiff alleges violations of Title III of the ADA, which requires public accessibility to businesses and public buildings (those open to the public). Sometimes, the plaintiff is a well-intentioned activist for the rights of the disabled, but in other cases the plaintiff and his or her attorneys are merely out to make a fast buck. Although alleging ADA violations, the plaintiff merely drives by a business to identify a minor violation without ever attempting to take advantage of a business’ services or buy its products.

Testimony before Congress during May 2016

Mili Shah (the owner of two small hotels in Atlanta, Georgia) testified before the Judiciary Committee about his experience with what some have labeled an ADA troll. When Shah received notice that his hotel was being sued for violation of the ADA, he immediately called the general manager to determine when the plaintiff had stayed in the hotel and the circumstances of the plaintiff’s unpleasant experiences.

Mr. Shah found out the plaintiff had never stayed at the hotel. Further investigation revealed the plaintiff had sued nearly 100 other businesses. The language of the complaints in each of these lawsuits was nearly identical, with extremely vague and general terms: problems in the parking lot, inadequate signs, and failure to provide accessible entry to the hotel’s pool. Although Mr. Shah didn’t think this vague and general language properly described his hotel, he was especially surprised by the allegations about the hotel’s pool: Since the pool is closed, he was being sued for not providing access to a part of the hotel that was closed.

Congressman Ted Poe (from Texas and the author of the bill) testified about how a Florida plaintiff had filed 529 ADA lawsuits; a California plaintiff, 124; a Pennsylvania plaintiff, 21; and a New York, plaintiff, 24. In one case, the Florida plaintiff filed suit against a hotel that he had never stayed in. Congressman Poe indicated that Bill Norkunas (who wrote the original ADA and the attorney who defended the Florida hotel) said the plaintiff was operating a “continuing criminal enterprise that boils down to extortion.”

Congressman Ken Calvert (from California) testified that 7,188 ADA lawsuits have been filed in California and 31 plaintiffs accounted for 56% of these lawsuits. (This data covers the period from 2005 to 2014.) He pointed out the California legislature had passed and the governor signed a bill similar to H.R. 3765 to address similar lawsuits brought under that state’s disability act.

A spokesman for the International Council of Shopping Centers testified:

The number of ADA lawsuits has continued to rise at alarming levels. Title III ADA lawsuits filed nationally in 2014 increased by 63% from the previous year. It is worth noting that the majority of these lawsuits are being filed by the same plaintiffs. Of the more than 4,700 Title III lawsuits filed in 2015, over 1,400 were filed by just eight plaintiffs.

California doughnut shop sued

In November 2015, Congressman Poe spoke on the floor of the U.S. House of Representatives about a small California doughnut shop that was threatened with an ADA lawsuit over minute violations of the ADA: a mislabeled table, door handles off by centimeters, and a trash can in the wrong location. Ironically, the manager of the doughnut shop is herself disabled, running the shop from a wheel chair. Ultimately, the owner determined that the plaintiff had sued about 80 other businesses in the area.

Plaintiff blocked from further ADA lawsuits

In 2008, the U.S. Supreme Court affirmed a decision by a California U.S. District Court judge barring a plaintiff from filing additional ADA lawsuits. (He had filed more than 400 by the time the judge acted.)

Details about the bill approved by the Judiciary Committee

This bill requires the Department of Justice to develop a program to educate state and local governments and property owners on strategies for promoting access to public accommodations for persons with disabilities. The program may include training for professionals on how to remedy potential violations of the ADA.

The bill prohibits persons from sending demand letters or other presuit notifications alleging a violation of ADA public accommodation requirements if the notification does not specify the circumstances under which an individual was actually denied access. The notification must specify—

1. Address of the property.
2. ADA sections violated.
3. Whether a request for assistance in removing an architectural barrier was made.
4. Whether the barrier was permanent or temporary.

The bill also prohibits plaintiffs from suing about an ADA violation (architectural barrier) unless the following procedures have been followed:

1. The plaintiff must provide the owner or operator with written notice of the violation and the notice must be specific enough to identify the architectural barrier.
2. The owner or operator must respond to the written notice within 60 days (from receiving the notice) with a description of how the barrier will be removed.
3. The owner or operator must remove or make substantial progress toward removing the barrier within 120 days of receiving the plaintiff’s notice.

Finally, the bill requires the Judicial Conference of the United States to develop a model program to promote alternative dispute resolution to resolve such claims. The model program must include an expedited method for determining relevant facts related to architectural barriers and steps to resolve accessibility issues before they can be litigated.

About the author: Mr. Canupp regularly advises government agencies and businesses about the public accessibility requirements of Title III the ADA and has filed an amici curiae brief with the U.S. Supreme Court in a case involving those requirements. In addition, he has spoken about the ADA at the Alabama City County Government Seminar. In addition to public accessibility issues, Mr. Canupp regularly advises government agencies and businesses about the employment aspects of the ADA.

© 2016