Over 1,000 ADA Accessibility Lawsuits Filed in the Past 15 Months
Business Owners Targeted
Arizona commercial property and business owners are under attack by a handful of firms asserting nearly identical allegations related to:
- Insufficient handicap parking
- Improper construction of restroom facilities and check-out counters
- In the case of hotels, failure to provide a pool chair lift
Advocates for Individuals with Disabilities Foundation, Ritzenthaler, Mosley, Abreu, and several others are leading this attack. All seek the same remedies: injunctive relief to retrofit the property and attorneys' fees and costs.
Even if your business or property has never had a reported accessibility issue, that does not mean you are safe from an ADA accessibility lawsuit. Some plaintiff firms are actively searching for violations regardless of whether it has actually impacted your customers or someone visiting your property.
How To Defend Your Business
Lawsuits are a costly and time consuming distraction from running your business. These suits pose a real threat to the welfare and continued existince of the business you've worked so hard to build. At Jaburg Wilk we have extensive experience defending against ADA accessibility suits like these.
Heading our ADA defense team, Matt Anderson has defended all sizes of Arizona businesses in serial ADA accessibility lawsuits – from small local business to multinational companies. He has given several presentations on defending these cases – including to the Arizona State Bar and the Arizona Outdoor Hospitality Conference – filed by Advocates for Individuals with Disabilities Foundation, Ritzenthaler, Mosley, Abreu, and others. Depending on the circumstances, some cases settle early; others we fight. Although each client’s business and litigation goals are unique, there are common questions and strategies that arise in each ADA case.
ADA Accessibility Lawsuit Defense FAQ
I notified my commercial liability insurance carrier of the lawsuit but they denied coverage – why?
Very few of my clients are able to secure insurance coverage for the defense of their ADA accessibility lawsuits. CGL carriers commonly deny coverage for these lawsuits because an "injury" under the ADA typically does not qualify as a personal injury or property damage under the CGL policy. Additionally, carriers generally do not insure against maintaining a property with architectural elements (i.e., barriers) that violate federal and state law.
I only own the property, not the business that operates on the property, so why am I being sued for an ADA violation?
Many property owners who lease commercial space to businesses mistakenly believe that only the tenant (i.e., the one operating the public accommodation) must comply with ADArequirements. Under the ADA, any private entity who owns, leases (or leases to), or operates a place of public accommodate is liable for ADA compliance. A public accommodation is defined as a facility, operated by a private entity, whose operations affect commerce and fall within at least one of 12 categories, defined by statute. Most businesses that offer a service to the public qualify as a public accommodation.
In light of the broad definition of a public accommodation, either the landlord or the tenant – or both – could be sued for ADA violations. However, as part of the lease agreement, landlords and their tenants can (and should) account for who is liable for ADA compliance and associated defense costs. To that end, many of my clients who find themselves as defendants in ADA lawsuits seek indemnification from their tenant/landlord – depending on what the lease requires. Bear in mind, though, that the plaintiff is not bound by what your lease says – he has discretion to sue who he chooses.
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My building is old, isn't it "grandfathered in" under the ADA?
No. The phrase "grandfathered in" is not recognized under the ADA. ADA requirements were first implemented in 1991; therefore, any building constructed before 1991 in which a public accommodation operates must be brought into compliance when it is "readily achievable" to do so. Readily achievable is defined as: "easily accomplishable and able to be carried out without much difficulty or expense."
The ADA does, however, provide for a "safe harbor" which offers some protection to those liable for ADA compliance. In general terms, a safe harbor means that if your building was constructed or altered after 1991 and is in compliance with 1991 ADA standards, further changes to comply with the 2010 ADA standards (i.e., retrofitting) are not necessary. There are exceptions to this rule, however, so each architectural element should be analyzed separately.
For many of my clients who own older restaurants and bars, removing walls to expand bathrooms, for example, is simply not an option – it would put them out of business – which is not the purpose of the ADA. Similarly, for my clients who own commercial property, regrading an entire parking lot or performing significant structural changes is cost-prohibitive and thus not readily achievable.
Why spend the money defending the case when I know I have a non-compliant element – shouldn't I just settle and move on?
Perhaps – if a reasonable settlement with favorable terms can be negotiated. However, many of my clients find the plaintiff's demand to be unreasonable, and would rather make the plaintiff prove his case. Remember, under the ADA, a plaintiff who prevails on an ADA claim is only entitled to a discretionary award of reasonable attorney's fees and costs. In many cases, little work is performed by the plaintiff's attorney, certainly not enough to justify an exorbitant demand.
Consideration should also be given to whether the plaintiff has visited the property in question – if not, the plaintiff may lack "standing" to file the lawsuit. Additionally, you may have a claim for dismissal once the non-compliant element has been modified and there is no likelihood of future harm (i.e., plaintiff's request for injunctive relief, which is the only remedy available under theADA, becomes moot).
Lastly, determine whether the allegations of non-conformity have merit, or whether a safe harbor applies. Some cases can be dismissed early on simply because the plaintiff measured a parking sign incorrectly, or failed to discover an applicable safe harbor.
Is there a way for a defendant to recover its attorney's fees and costs?
Yes. The ADA provides that the court may award the prevailing party – whether plaintiff or defendant – its reasonable attorney's fees and costs. Contrast this with Arizona's companion act (AzDA), which limits a court's ability to award a defendant its fees and costs to circumstances in which the plaintiff's complaint is frivolous, unreasonable, or without foundation. Certain measures can be taken during the pendency of a lawsuit to make such a showing. Specifically, where a plaintiff persists in pursuing fees, costs, and injunctive relief where the non-compliant element has already been remedied, a defendant has a strong argument that the plaintiff is not acting in good faith, which can result in sanctions against the plaintiff, and possibly his attorney.
What can I do to prevent future ADA accessibility lawsuits?
Part of every settlement agreement should require, among many things, that the plaintiff agree (1) to not sue the owner/operator in the future for an ADA violation without a notice and cure period and (2) to not share information with another individual that would contribute to that individual suing the owner/operator. Additionally, I recommend that owners/operators of public accommodations bring all of their property – not just the property at issue in the lawsuit – into compliance to the extent it is readily achievable to do so. Moreover, business/property owners should pay particularly close attention to the "low hanging fruit" that a potential plaintiff could observe from the road (i.e., low/missing handicap accessible and van accessible signs, narrow or non-striped access aisles, insufficient number of handicap spaces, inaccessible routes, non-lever door knobs, etc.)