Many modern building codes incorporate accessibility requirements that parallel or even exceed the requirements of the FHA and ADA. In fact, the regulations implementing the accessibility provisions of the Fair Housing Act identify as safe harbors the provisions of several versions of the International Building Code. It is hardly surprising then that property owners and contractors believe that getting a certificate of occupancy means the building complies with the FHA or ADA. Nonetheless, getting a C.O. is no guarantee of compliance with the law and no proof against litigation. The reasons are largely practical, but there is a legal dimension as well when it comes to placing the blame for a failure to comply. More
Accessibility Litigation Trends
In the classic Kenny Rogers song “The Gambler” a mysterious stranger advises him to “know when to hold ’em, know when to fold ’em, know when to walk away and know when to run.” You can’t walk or run away from an ADA lawsuit, but a spate of new decisions illustrate the dangers of not knowing when it is time to stop fighting and start settling.
I’ll start with Kalani v. Nat’l Seating & Mobility, Inc., 2014 WL 1665226 (E.D. Cal. Apr. 25, 2014), a typical ADA lawsuit claiming problems with parking and an accessible restroom. The defendant contest the truth of the plaintiff’s allegations, arguing instead that some of the evidence in a summary judgment proceeding was inadequate. After thinking the matter over in a Motion for Reconsideration the Court granted the plaintiff statutory damages under California’s Unruh Act. The damages were not large ($4,000), but as other cases show choosing to fight on procedural rather than substantive grounds can cost far more when it comes time to award the plaintiff attorney’s fee. And of course all the money spent on the non-substantive defenses was completely wasted.
Griffin v. J.A.R.S., LLC, 2014 WL 1600315 (S.D. Fla. Apr. 21, 2014) is another decision that might be regarded as a prelude to the fight over attorney’s fees. In Griffin the defendant claimed that the complaint was inadequate because it referred to violations of “Section 208” of the ADA standards. As examples the defendant cited specific parts of Section 208 that would not apply to the defendant. The Court was not impressed, writing that:
Defendants point to parts of Section 208 that they have picked and chosen and that they know do not apply to them and use those aspects of the Standards to argue that Section 208 as a whole does not apply to them when they know full well that the general parts of Section 208 do appear to apply to them. Worse yet, they appear to attempt to hide the relevant parts of Section 208 by attaching only the irrelevant parts of the Standard to their Motion. This does not comply with the duty of candor to the Court, and it is frivolous at best and disingenuous at worst. Defendants’ other challenges to the Complaint are similarly without basis, and the Court will not belabor this Order further pointing out the faults with them.
Losing this particular motion to dismiss probably stung, but losing the Court’s confidence in the defendant’s honesty is likely to be very expensive in the long run.
Lema v. Comfort Inn Merced, 2014 WL 1577042 (E.D. Cal. Apr. 17, 2014) is a case in which the defendant’s tactics resulted in a higher award of attorney’s fees to the plaintiff. In Lema the defendants refused to settle the substantive claims in the lawsuit because the plaintiff failed to produce billing records. The defendants argued that without the records they could not settle the attorneys fee claims. The court, which referred to the defendants’ “extensive delaying tactics,” refused to adjust the plaintiffs fees on this basis. It noted instead that if the defendants had settled the substantive claims — which did not seem to be disputed — they would have eliminated the cause of action giving rise to attorney’s fees and thus limited further fees. By refusing to settle the substantive claims the defendants gave the plaintiff to continue incurring recoverable fees.
Finally, in Hernandez v. Grullense, 2014 WL 1724356 (N.D. Cal. Apr. 30, 2014) the defendants managed to turn a judge with grave doubts about the plaintiff’s attorney’s claim for fees into an award of very high fees simply because they refused to admit the obvious; that is, that the property was not ADA compliant. To understand the case it is helpful to start with the Court’s attitude toward the plaintiff’s lawyers:
This motion presents the problem of determining a fair award in an uncomplicated ADA matter to an experienced law firm that has been repeatedly criticized for the same unreasonable billing practices that it used in this case.
By richardhunt in Accessibility Litigation Trends, ADA FHA General, ADA FHA Litigation General, Restaurants, Retail, Shopping Centers Tags: ada litigation, ada violation, private lawsuits, private litigants
If you know your business has ADA compliance issues then hire an expert to find them all and plan for remediation. If you’re not sure, and don’t want to pay to expert, here’s a method for checking the accessibility problems most likely to lead to a lawsuit. If your business has these issues, your best way to avoid litigation is start fixing them now. You’ll need a good 16 ft. tape measure, a 2 foot level, a yardstick, and a short piece of 1″ dowl. Remember as you do this survey that a very large majority of ADA lawsuits are brought by plaintiffs confined to a wheelchair, so wheelchair accessibility standards are the key to avoiding most lawsuits. No matter what the actual measurements, if there is something in your business that isn’t readily accessible to a person in a wheelchair then you have a lawsuit waiting to happen.
We’ll start with parking, which is where the plaintiffs usually start. If your accessible parking looks like the picture below on the left then you’ve probably got a barrier to access that must be fixed. The picture next to it explains why. A ramp that projects out from the sidewalk will almost never satisfy the ADA accessible design standards.
Any accessible parking ramp should look like one of the pictures below.
(Thanks to Michael Allen of Code Able Accessibility for the photo on the right).
Next, measure the largest accessible space. Current standards require at least one van accessible parking space, which requires a flat area at least sixteen feet wide and as deep as local codes require, usually 19 to 20 feet. Flat means flat. Use the level to make sure the space doesn’t have any significant slope. How many accessible spaces you need depends on the total number of parking spaces, but if you don’t have one van accessible space you are a litigation target. Here’s a picture from the DOJ showing a properly marked accessible parking space. The picture is misleading in one way. The marked access aisle only has to be 60″ wide if the van parking space next to it is 11 feet wide. The total is 16 feet wide no matter what.
There are requirements for the slope of the ramp and the wings next to it. You can make sure the ramp slope meets the ADA requirement by putting the level on the ramp with the 0″ end at the top. Lift the level and slide the dowl in at the 12″ mark and then roll it up or down until the level is level. If the dowl touches the level at the 12″ or higher mark the slope meets the 1/12 slope requirement.
Next, walk from the accessible space to the front door of your business. Did you pass any other parking spaces? For a stand alone business the accessible space should be the closest space to the door unless there are physical reasons it cannot be. In strip shopping center there may be more leeway, but if there is a lot of closer parking you may have a problem.
While you walked did you see any bumps or gaps of more than 1/4″? If so the route may not be “accessible.” Any steps? Then the route is definitely not accessible and therefore doesn’t comply with the ADA. Finally, were there any discernable slopes? if so, check them the same way you checked to parking access slope. My suggestion would be that even if the slope passes this test you talk to a consultant because the slope and cross slope requirements are complex enough to warrant expert review.
You need to check two things at your front door. First, the threshold should be no more than 1/4″ high, or 1/2″ high with a beveled edge. Second, the width of the door itself should be 36″ or more. The actual ADA requirement is based on clear space when the door is open, but as a general rule a hinged 36″ door that opens at least 90 degrees will have the required clearance. A 35″ door is cutting it very close, and a 34″ door will not have the required clearance.
Restrooms are a very common source of ADA complaints, and although the restroom rules are very complicated you can make a few measurements to determine if you have the most common kinds of problems. First, check the door. Does it have a knob? Then it is not ADA compliant. Lever door handles are required in almost all cases. Next, check the size of the restroom. If the door swings out the restroom must be at least 5′ x 7′ to comply with the current standards. If the door swings in the minimum is 7′ x 6′ 6.” No matter how the restroom is laid out if it doesn’t meet these size minimums it probably violates the ADA.
Of course the placement of the toilet and lavatory matters as well. While clever layouts that save space are possible, the easiest way to tell if there is an issue with the toilet is to measure sixty inches out from behind the toilet and 60 inches out from the wall next to the toilet. If there is anything other than the toilet and grab bars in that 60″ x 60″ square then the restroom probably does not comply with the current ADA standards.
Speaking of grab bars, there must be one behind and one on the wall closest to the toilet. Location and dimensions are important, but if you don’t have one of each then there is certainly a problem.
Finally, for a quick survey, make sure there is one lavatory open at the bottom so that a wheelchair can roll up to it. Any pipes need to be covered, and the sink height can be no more than 34 inches. The location of soap dispensers, faucet levers (no knobs) and towel dispensers are all important as well, but these aren’t the major causes of litigation.
The final check on this quick survey of the most common problems will be the width of aisles in the store or business and the height of checkout counters. Use the yard stick to make sure there is at least 36″ wide path to everywhere in the business a customer might ordinarily go. Remember the 36″ width has to be a floor level as well as above. If there are places a consumer can’t reach by a 36″ wide route then there is almost certainly an ADA problem.
The checkout aisle requirements are somewhat complicated, but the usual violations are not hard to find. A typical grocery checkout — the kind with a moving belt — cannot be more than 38″ high with a 2″ lip. A checkout counter cannot be more than 36″ high and must have a space at least 36″ long and deep in front of it. If the counters are higher than this, or cannot be easily approached by a person in a wheelchair, there is probably an ADA violation.
Remember that this DIY survey can’t tell you if your business is fully ADA compliant — it only covers the most common ADA violations that lead to litigation. The safest course for any business is to hire a consultant and get a complete survey. This survey also assumes the worst in most cases. If you are already in a lawsuit there may be good arguments for an exception to the general ADA standards. But if you aren’t in a lawsuit and don’t want to be, this survey will tell you whether you’ve go a target painted on your back with respect to ADA litigation.
A recent decision from the Southern District of New York, Gropper v. David Ellis Real Estate L.P. , 2014 WL 904483 (S.D. N.Y. March 4, 2014) demonstrates some of the unique features of ADA litigation, but also points to a practical solution for business owners who want to avoid a lawsuit.
The issue before the court was whether the plaintiff’s lawyer should produce his case files and submit to a deposition. The defendant’s argument for a deposition was simple. Many of the allegations concerning non-compliance in the defendant restaurant were not based on what the plaintiff had observed, but on what the lawyer had observed. For example, some toilets were not on an accessible floor, but the lawyer had determined they did not meet the ADA standards. According to the defendant this made the lawyer a witness who had to produce his files and submit to a deposition.
The court disagreed. It refused to allow the deposition and document production, but also refused to award the defendant any costs or attorneys fees. The court’s explanation for refusing the discovery was pragmatic:
there is no need whatsoever to depose Mr. Parker. The information he possesses concerning the physical layout and various features of the Blue Water Grill is readily available to the defendants, who own the premises and operate the restaurant.
Business owners should see in this a hopeful message about ADA compliance. It didn’t take an expensive expert to determine that the toilets were not accessible; the plaintiff’s lawyer could do it himself. It is certainly true that many aspects of ADA compliance are complex, and both the current 2010 Standards and the earlier ADAAG guidelines are written in language only a bureaucrat could love, but the basic rules concerning public toilets, door widths, slopes and the like can be applied by anyone with a tape measure and a level. The ADA violations most likely to give rise to litigation can be discovered by a business owner without hiring an expert, as I’ll explain in more detail in my next blog. If a lawyer can find it, then an owner can find and fix it first.
The court’s refusal to award the plaintiff fees is also interesting because it shows the ambivalent attitude of the courts toward professional plaintiffs and their counsel. Ordinarily lawyers are not deposed and their files are not subject to subpoena. Demanding the deposition of opposing counsel is so often improper that the demand frequently leads to sanctions. In this case the unusual demand and some very unprofessional allegations against the plaintiff’s attorney lead the court to observe that there was a pattern of behavior suggesting the defendants were “vexatiously” multiplying the litigation, which would deserve sanctions. The court refused those sanctions because the plaintiff’s counsel had in fact participated in the investigation of facts, which is not an appropriate role for the trial lawyer. There may be some hope that as court’s begin to fully appreciate the nature of the ADA litigation industry they will become more reluctant to give the benefit of the doubt to plaintiffs who are part of a litigation production team in which most of the profit goes to attorneys.
Still, while it may feel good to attack plaintiff’s counsel in these cases, the important message for business owners is that you can avoid being a litigation target by simply coming into compliance with the ADA, and that even if the owner doesn’t have the money to hire an expert to conduct a full ADA survey, the owner can himself do a lot to discovery and fix non-compliant features of the business.
This morning’s news featured a piece about ADA based attacks on workshops for the disabled (Morning Edition, National Public Radio). What’s bad about a special facility where those with intellectual and other severe disabilities can earn some money? According to the DOJ and supposed disabilities advocates it keeps the disabled from getting “real” jobs that pay at least the minimum wage. What’s the solution? Kick the disabled out of the sheltered workshops and see if they can make it in the real world, where many will not be able to find any work at all. It is worth noting, of course, that any disabled person always has the option of looking for conventional employment — none of the workshops involved compulsion. But because the DOJ and a small group of supposed advocates don’t like the way these programs serve the disabled the programs will be reduced in scope if not shut down entirely. More