I’ve observed before that titles II and III of the ADA create what can be called a crime looking for a victim.* The decision in Hamer v. City of Trinidad, 2019 WL 2120132 (10th Cir. May 15, 2019) shows how defining the crime can change the burden cities may face today based on decisions that go back decades or even centuries. The decision in Hamer will allow almost any person with a disability to demand that every inaccessible facility of a town like Trinidad be fixed regardless of its historical origin and regardless of how long the plaintiff has known of the problem. This decision contradicts decisions from other Circuits and follows a dubious analytical path. (For those who want a different view on this case, William Goren’s blog Repeated Violations Doctrine makes the case for this decision being correct). More
Public Facilities
ADA Standards – can you sit in a wheelchair while you stand at the bar?
Must there a place at the bar for wheelchair users? Although there seems to be no relevant case law on the subject this is a contentious issue in many of the ADA cases we handle. It’s worthwhile to ask just what the ADA does or should require, or if that question can be answered based on the ADA and accompanying guidance and regulations.† More
Temporary profits can mean a permanent problem under the ADA
What’s wrong with this picture? You can be excused if you don’t immediately think, “no accessible parking,” but that might be the first thing that would come to mind for the defendant in Langer v. G.W. Properties, L.P., , 2016 WL 3419299, (S.D. Cal. June 21, 2016). Langer serves as a reminder that a business not usually covered by the ADA can become a “public accommodation” based on temporary use, and that this may lead to requirements for permanent changes. Commercial enterprises and apartment complexes should pay attention, as should any owner of raw land that allows it to be used for parking from time to time.
Abusive ADA Litigation – the answer is local, not legal
Tens of millions of dollars are wasted each year on litigation under the Americans with Disabilities Act. The money is wasted because instead of going directly to improvements that make businesses more accessible, the money goes to lawyers. Diverting money from remediation to litigation is the real tragedy of so called “drive-by” lawsuits..
Every couple of years Congress tries to fix this problem with legislation that would require notice before the filing of an ADA lawsuit. There are three such bills pending in the current session. The most sophisticated, the ADA Education and Reform Act of 2015 (H.R. 3765), includes provisions that would help educate businesses about their ADA obligations. This kind of legislative effort has always failed in the past, and there seems little reason to think that the current Congress will be able to do anything this time around.
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When there are a string of local lawsuits state and local government also try get involved, usually with similar efforts to require pre-suit notice. Of course these efforts fail from the outset because the ADA is a federal law and states cannot interfere with its enforcement mechanism.
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Can anything be done? Well, the real problem with the various legislative initiatives is that lawsuits feed on the existence of barriers to access. Plaintiffs’ lawyers I have dealt with tell me that even when they send demand letters more than half are simply ignored by businesses that don’t understand the law or their legal obligations. Given this level of ignorance, and the fact that a plaintiff can easily find 30 or 40 ADA violations just driving around for a weekend, merely requiring a pre-suit demand will do little to reduce the number of lawsuits.
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The ADA Education and Reform Act of 2015 starts to get at this problem with its provisions calling for the development by the DOJ of an education program, but the mandate is not funded, and past efforts by DOJ to educate small businesses have largely failed. Twenty-five years after the passage of the ADA the number of ADA lawsuits continues to climb, which is proof enough that top down education efforts without any funding will never improve ADA compliance or eliminate wasteful litigation.
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What we need instead is work by local chambers of commerce and municipal governments that focuses not on general education but on finding specific common ADA violations so they can be fixed before lawsuits are filed. The best way to do this is to adopt the same tactics used by serial litigants. With minimal training (see our page on Education for Business) police and employees responsible for code enforcement can spot common accessible parking problems. An official notice, even if not accompanied by the threat of a fine, should be enough to get most businesses to look seriously at ADA compliance. Chambers of Commerce can enlist volunteers to do the same thing. Compliance will come from education, but the education will be local, responding to the real needs of local businesses.
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This kind of program does not require any kind of extensive ADA training or survey. The reason lawsuits from serial litigants are sometimes referred to as “drive-by” lawsuits is that the plaintiffs literally just drive around looking for non-compliant handicapped parking. If the parking at a business looks good they probably won’t even stop to see whether the rest of the facility is accessible. A business with parking that meets ADA standards will have eliminated most of the risk of a lawsuit and bought itself time for a proper survey and remediation of the interior of the premises.
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The solution to the waste caused by serial litigation is to eliminate ADA violations, and that can be done most effectively when local governments and local chambers of commerce act directly to find violations and educate business owners about those violations. There is no need to wait for Congress to pass a bill that may be doomed anyway. The answer is local, not legal.
ADA Title II – Maybe sidewalks aren’t services after all
Does this look like a “service, program or activity?” The official position of the Department of Justice is that every city facility – sidewalks, buildings and the like – must be made accessible because building and maintaining those facilities is a “service, program or activity” of the city. The Fifth Circuit agreed in what has been a leading case on this issue, Frame v. City of Arlington. Now it appears this view is not unanimous. Just a month ago, in Babcock v. Michigan, 2016 WL 456213, (6th Cir. Feb. 5, 2016) the Sixth Circuit found that the Fifth Circuit was wrong, and that:
facility accessibility is not, standing alone, a cognizable claim under Title II’s private right of action; rather, the inquiry is tied to whether that facility’s inaccessibility interferes with access to public services, programs, or activities.