benjamin-franklin-04A number of states have passed laws intended to stop abusive ADA lawsuits, including most recently Florida and Texas.* As we’ve reported several times recently some individual federal judges are taking their own steps to stem serial litigation without diminishing the rights of the disabled. All these efforts attack the problem at the wrong end. Serial ADA lawsuits are a just a symptom of a deeper problem – a lack of ADA education and regulatory enforcement.

The statutory responses to ADA lawsuits, both state and federal, are aimed at the complaint by businesses that they didn’t know they were violating the ADA until they were sued, and they couldn’t fix the ADA problems without spending a fortune on legal fees. The standard response is some kind of requirement of notice and an opportunity to cure. Florida has created a more elaborate regulatory regime that purports to allow businesses who have remediated before they are sued obtain an early dismissal. It is fair to say that none of the state statutes are likely to have a large impact because federal courts applying a federal law cannot be regulated by the states. HR 3765, the bill pending in the U.S. House of Representatives will have an impact, but still does nothing to prevent the filing of a lawsuit in the first place.

Gomez v. Empower “U”, Inc., 17-CV-22633, 2017 WL 4919224 (S.D. Fla. Oct. 31, 2017) shows how one federal court in Florida has imposed its own notice and opportunity to cure procedure. In all ADA cases the Court gives the defendant 60 days to propose a remediation plan and then requires reports every ninety days thereafter. Only if the plan fails will the Court open the case and allow any proceedings by the plaintiff. Like the state and federal initiatives this procedure reduces attorneys fee overhead. It does nothing, however, to stop the filing of lawsuits in the first instance.

Burningham v. TVI, Inc.  2017 WL 4857555 (D. Utah Oct. 25, 2017) is one of several recent cases from Utah** that deal with serial ADA filings by simply requiring that ADA plaintiffs meet the pleading and procedural requirements already in the Federal Rules. This approach can be traced back to the 9th Circuit’s decision in Oliver v Ralph’s Grocery, 654 F.3d 903 (9th Cir. 2011). Requiring a plaintiff to plead specific ADA violations and then limiting the plaintiff to the pleaded violations makes it possible for a defendant to remediate before the lawsuit becomes expensive, at least when the barriers to access are physical. Unfortunately the Ninth Circuit has made its decision meaningless in terms of fending off abusive ADA lawsuits by encouraging abusive litigation with absurdly liberal holdings on standing.† The District Court in Utah shows that pleading requirements can be used by the Courts to reduce abuse, but, once again, only takes effect after a lawsuit is filed.

Both judicial and statutory solutions to serial ADA litigation fail to deal with the underlying problem; that is, there are still many many businesses that don’t meet the basic requirements of the ADA concerning parking and accessible routes. We have seen plaintiffs filing suits that have no merit at all, but most serial litigation begins with a real ADA violation; if it didn’t businesses wouldn’t need a chance to remediate. That immediately raises the question that plaintiffs and their attorneys so often ask: Why after more than 25 years are so many businesses not in compliance?

The answer is straightforward. Nobody tells businesses to comply until they get sued. The Department of Justice is tasked with educating business, but it seems to have no budget and little appetite for education. This is hardly surprising since DOJ is first and foremost in the business of suing people or prosecuting criminals. Giving advice is not its strength. Actions at the state and local level may create more confusion than compliance. Local building codes do not always include accessibility requirements matching those of the ADA. Businesses are lulled into thinking to that a certificate of occupancy is a certificate of ADA compliance, which of course it is not. Equally important, local codes generally concern only new construction. There is no equivalent to the “barrier removal” requirement in the ADA.‡

It is, however, at the local level that ADA education can be effective. If cities and counties both match their local code requirements to the ADA (which is as simple as adopting any of the more recent versions of the IBC) and take those code requirements seriously every local business is likely to be informed about compliance when it opens or makes renovations. If ADA parking and accessible route requirements were treated as safety issues (which they can be) subject to periodic inspection businesses would be reminded of the barrier removal obligation in the ADA.

The DOJ is a long way from small town USA, but there is a local building inspector who has direct contact with local businesses. This shifts what should be a federal burden to local government, but those local governments are the ones who benefit most when local businesses profit, and those whose elected officials are the first to hear about the horrors of serial litigation. It might be added that local businesses have an interest in compliance, and local chambers of commerce should consider programs to educate their members about compliance issues and the threat of serial litigation. At the end of the day the cheapest and most effective way to stop serial ADA lawsuits is to improve the level of ADA compliance. Until federal, state and local governments are willing to invest in direct education through code enforcement or inspections we will be treating the symptoms of ADA non-compliance without treating the disease.

*The Texas statute, HB 1463, amends the Texas version of the ADA to require notice and an opportunity to cure. The Florida statute,  HB 727, is more ambitious, creating a state level certification program for ADA compliance and requiring courts to take the certification into account. Texas already has a state level compliance and certification program without the demand that federal courts pay attention to its conclusions.
‡ Those in the disabilities rights community often argue that after 25 years every business should be aware of the ADA’s requirements. This ignores the fact that new businesses open all the time, making education about the ADA an ongoing necessity.