Disability access lawsuits are a hardship for those on both sides of the argument. People with disabilities are frustrated when they have trouble finding parking, accessing stores for shopping or even using a restroom because of the way a building has been built or designed. Public bodies, landowners and shopping center owners are frustrated by the number of what Garth Stapley in “The Modesto Bee” called frequent flyers – those demanding big money and attorneys’ fees in these cases.
There is now a cottage industry surrounding the filing of ADA lawsuits that has spread from Florida and California to the rest of the country. These claims have now found their way to Louisiana. Most of these claims are being brought by serial litigants working usually with the same lawyers. They include:
Robert McCarthy, a convicted thief and pedophile from Arizona, who in 13 years has filed at least 254 lawsuits in California, who so far has been the leader in the nation of those cashing in on ADA violations.
Aurora Cervantes, of Atwater, California, has sued seven Turlock County companies and 14 in Merced County.
Thad Tatum, a convicted felon, now partially confined to a wheelchair after having been stabbed at the Louisiana State Prison at Angola, who is now out of prison and, since June 2012, has filed 29 lawsuits, all in South Louisiana, against public and private defendants. Mr. Tatum has been represented in each of these cases by New Orleans attorney Andrew Bizer.
In Louisiana, over 29 lawsuits have now been filed by Thad Tatum. Mr. Tatum has filed suits against private owners, shopping centers, and has recently filed cases against UNO, SUNO and Southeastern Louisiana University.
It is a matter of time before these claimants will start filing lawsuits against municipalities.
In almost every case, the first notice that the public body landowner, shopping center or other business entity has of the complaint is the filing of the federal lawsuit. Many of the cases get quickly settled with the disgusted business owner paying less than $5,000 and agreeing to fix whatever was wrong. Kim Stone, president of the Civil Justice Association of California, has reported that a typical demand is $5,000 to $10,000. In Stapley’s article, Stone says, “It’s legalized extortion.” The Civil Justice Association of California is the largest lobbying organization in Sacramento, pushing ADA reform.
Stapley said the ADA was passed during the administration of George H.W. Bush, and the former president seemed to predict some of these unintended consequences. However, Congress at the time did not wish to add bureaucracy to be required to enforce the law. Our courts also agreed that enforcement could be handled through private lawsuits. One particular California judge even said that serial plaintiffs represent “the best hope of widespread change in favor of access for the disabled.”
Several bills seeking to remedy or reform the ADA proposed by Representative Mark Foley (R-FL) but they have failed to clear committee. There is hope that perhaps the new Congress will consider some reasonable changes that will at the very least require notice to the landowner, and an opportunity to remedy within a reasonable time, before they are exposed to an arbitrarily-filed federal lawsuit.
How Can You Protect Yourself From These Cases?
Conduct a proactive survey of your facilities before suit. This is the best and most proactive way to avoid litigation. Choose a professional with extensive ADA experience to perform this survey. There is a great disparity in the knowledge and experience among architects and contractors regarding the requirements.
Prepare an ADA compliance plan as soon as possible. The plan is usually a survey with notes about what each barrier or compliance issue is; the cost to remediate each; and the projected completion dates. Having a plan “underway” is a good defense to a potential claim. Even if you have not completed your barrier removal plan, it is possible that an injunction would not be appropriate where you can establish that you have taken affirmative action.
Aggressively put the plaintiffs on their feet by putting their fees at risk. The ADA is a fee-shifting statute. Like many other Civil Rights cases, the prevailing party can receive attorneys’ fees. Usually in these cases, it is the prevailing plaintiff that gets fees and costs. However, if you can pick a case and prevail on the issues, you can obtain your attorneys’ fees and costs from the plaintiff. Consequently, it is important to pick your battles. A ruling in a recent United States Supreme Court case, Buckhannon Board and Care Home, Inc., et al. v. West Virginia Department of Health and Human Resources, et al., has changed the balance of power in some of the litigation against private property owners. Buckhannon has eliminated the catalyst theory of the prevailing party discrimination in cases where damages are not available. Fortunately, damages are not available against private property owners. Public facilities and publicly-owned facilities, however, are exposed to damages to the plaintiff. In private cases (Title III), the recovery is limited to obtaining a cure to the deficiencies and attorneys’ fees for the plaintiff.
Challenge the standing of the plaintiff. Several cases have been successful in this regard. For instance, a person challenging whether or not Braille elevator plaques are missing should not be enforceable by persons who are not blind.
Not readily achievable. Buildings built pre-1992 are not exempt as many think from the provisions of the Act. Older buildings must provide remediation changes that are readily achievable, including removal of barriers to provide accessible paths. If you can prove that these are not readily achievable, then you can win on the dispute. Readily achievable is defined as “easily accomplishable and able to be carried without much difficulty or expense.” This defense will apply to architectural barriers and communication barriers that are structural in nature that pre-existed the effective date.
It would be a fundamental alteration. Title III of the Act makes it illegal to fail “to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations.”
It is a threat to health and/or safety. The standard provides that “no measure shall be taken, however, that poses a significant risk to the health and safety of individuals with disabilities, or others.”
It is an undue burden. This defense is defined by regulations provided by the Treasury Department as “significant difficulty or expense.”
It is not a place of public accommodation. Most of Title III only applies where there are commercial places of public accommodation. It does not apply to commercial facilities or multi-family housing facilities that are not also places of public accommodation. New construction and alterations requirements do apply to commercial facilities that are not places of public accommodation.
Other Potential Defenses/Defense Strategies
Prevailing Party. Another good defense is to complete all of your cures and remedies before the actual trial. In this instance, you could become the prevailing party since there are no deficiencies.
Settle Early. Until such time as you have in place a proactive plan to remedy any ADA obstacles, it is still the best course of action to strike the best settlement you can at the outset. This way, you can avoid attorneys’ fees on your behalf and avoid running up the attorneys’ fees that will inevitably have to be paid to the plaintiff assuming he has identified a violation of the Act. Most plaintiffs and their lawyers are very knowledgeable about what a violation is. If they have taken the trouble of filing a federal lawsuit, typically they have identified several violations of the Act. Usually, it is best to strike the best possible settlement and bring the case to a close.
Consider an “Offer of Judgment” at the very outset of the lawsuit. If you offer to fix all of the violations and pay reasonable fees of a few thousand dollars at the outset of the litigation, this can freeze your exposure and often drive a quicker settlement if the plaintiff is not willing to be reasonable.
Subrogation. If your building or property has been recently constructed and/or designed, it is possible to make a subrogation claim against your architects, designers and perhaps your contractors for not making your property compliant. It is not possible to bring a third party action in the federal ADA action however. These suits would have to be brought in state or federal court on a separate basis. It is good practice, though, to notify your contractors and designers as soon as you receive a lawsuit and indicate to them that you expect their help in remedying the situation and bearing the costs of settling the case.
Legislative reform. Consider contacting your Congressman and letting him know how important it is that you favor reasonable reform of the Act to provide an opportunity to cure any defects before litigation. It is also in your interest to hire lawyers that already have experienced defending ADA cases. Otherwise, you will pay top dollar to get your lawyer up-to-speed.
Christopher Moody is an attorney with the Moody Law Firm in Hammond, Louisiana, who defends the LMA and municipalities
** A version of this article first appeared in the May 2015 issue of Commercial Leasing Law & Strategy, Volume 27, No. 11.