Courts almost universally agree that the ADA does not require that a plaintiff give notice before filing suit. I have argued that while notice is not a procedural requirement, it should be implied as a substantive requirement for any claim based on a failure to remove barriers because one cannot fail to do something that one has not been asked to do. For a defendant in a barrier removal case there are other arguments to make as well.

Perhaps the most persuasive argument for pre-suit notice comes from Rodriquez v. Investco, L.L.C.,  305 F.Supp.2d 1278 (M.D. Fla. 2004). Without addressing the specific statutory provisions in question the Court simply observed that permitting a recovery of attorneys fees when there was no prior notice created an economic incentive to file needless lawsuits.

One might reasonably ask whether attorney’s fees should be awarded where no effort is made pre-suit to obtain voluntary compliance. After all, if the litigation achieves no result other than that which could be accomplished by agreement, what social or economic value has been added by the lawyer’s decision to file a suit without warning? Indeed, under this scenario, it would seem that litigation carries only negative economic value—it has accomplished nothing but expense and waste of precious judicial resources.

Id. At 1280.  Another Florida court has called for a legislative solution. Brother v. Tiger Partner, LLC, 331 F.Supp.2d 1368, 1374 (M.D.Fla. July 6, 2004)  However, past efforts to amend the ADA to require notice as a procedural matter have failed many times.

This legislative failure does not mean there is no defensive argument to make. It is ultimately up to the Court to decide what constitutes a reasonable fee in any ADA case, and the argument in Rodriquez v. Investco can be applied to any application for fees. Simply put, fees that could have been avoided by a pre-suit notice are prima facie unreasonable.

A second, more technical argument for pre-suit notice as an element of a claim for barrier removal comes from an examination of the regulations in light of the realities of property ownership. It seems well established that even if a facility was built after the effective date of the ADA “design build” liability attaches only to the original owner, not to subsequent owners. Rodriquez v. Investco. The implementing regulations for the ADA do require barrier removal when it is readily achievable, but acknowledge that barrier removal cannot take place overnight. 28 CFR §36.304(a) provides that public accommodations “shall remove barriers.” At the same time, subsection (c) provides that a “public accommodation is urged to take measures to comply with the barrier removal requirements of this section in accordance with the following order of priorities.”

The word “urged” and the stepwise approach to barrier removal acknowledge the obvious fact that a person who buys a property with architectural barriers cannot wave a magic wand and make them disappear overnight. There will be a period of time in which barriers to access remain, and there is no logic to saying that a private plaintiff can sue based on barriers that the owner has not had time to remove.

In addition, despite the detailed guidance in the original Guidelines and 2010 Standards, there can be no doubt whatever that what constitutes an architectural barrier depends on the specific circumstances and plaintiff. The very fact that the 2010 Standards differ from the original Guidelines proves that what constitutes an architectural barrier is a matter of regulatory convention, not reality. The same truth is illustrated by subsection (d)(3), which permits steeper ramps and narrower doorways under some circumstances, and even by subsection (b), which gives examples of ways to remove barriers rather than simply saying that the owner must make the facility comply with the guidelines or standards as if it were new construction.

Since Congress specifically declined to require perfect compliance with the Guidelines and Standards for existing facilities or to fix a time within which barriers must be removed, and since Congress defined discrimination in terms of individuals rather than classes, the owner of an existing facility cannot be said to have discriminated unless he or she is notified that there is a condition that constitutes a barrier to a particular individual and then fails to  remove that barrier. To require otherwise denies the owner the opportunity to make changes over time as permitted by Section 36.304(c), and requires the owner to make changes, on speculation, that may be of no benefit to anyone until some unknown and entirely hypothetical future date.