Suppose a wheelchair bound individual interested in accessibility issues becomes a Registered Accessibility Specialist (“RAS”) in Texas or a Certified Accessibility Specialist (“CASp”) in California. She sets up a consulting business, and her first client hires her to do an accessibility survey of a hotel. She finds numerous barriers to access, prepares her report, and then sues her client, claiming that she suffered discrimination under the ADA when she encountered the barriers to access she was hired to find. There is clearly something wrong with this picture, but you wouldn’t know it from reading some decisions on ADA standing. Looking at what is wrong helps clarify how courts have gone wrong in analyzing ADA standing.
By richardhunt in Accessibility Litigation Trends, ADA, ADA FHA Litigation General, Hospitality, Hotels, Retail, Shopping Centers Tags: ada litigation, ADA pleading, ADA standing, ada violation, mental health disabilities, private lawsuits, private litigants, real-estate, restaurants, retail
A couple of district court decisions from late February should both comfort and warn ADA defendants. Gutierrez v. Chung, 2013 WL 655141 (E.D. Cal. 2013) reminds us that settlement alone doesn’t resolve an ADA violation. The only permanent solution is remediation. National Alliance for Accessibility, Inc. v. Millbank Hotel Partners, 2013 WL 653955 (D. Md. 2013), on the other hand, shows how to attack the boilerplate pleadings found in almost all ADA lawsuits. More
By richardhunt in Accessibility Litigation Trends, ADA FHA General, ADA FHA Litigation General, Hospitality, Hotels, Restaurants, Retail, Shopping Centers Tags: ada litigation, ada violation, private lawsuits, private litigants, restaurants, retail
A few careless words in an opinion can spawn dozens of lawsuits and may create precedents that cost property owners and operators tens of thousands of dollars in legal fees if not in remediation costs. The question of whether compliance with ADA Standards and Guidelines is sufficient to avoid an ADA claim illustrates just how this can happen. More
By richardhunt in Accessibility Litigation Trends, ADA, ADA FHA General, ADA FHA Litigation General, Apartments, Condominiums, FHA, Hospitality, Hotels, Multi-Family, Residential Development, Restaurants, Retail, Shopping Centers Tags: ada litigation, ada violation, FHA Litigation, private lawsuits, private litigants, real-estate, restaurants, retail
2012 brought with it the final effective date for the 2010 Accessibility Standards and with that new possibilities for claims under the ADA and FHA. The most significant change in the standards from a litigation standpoint was the imposition of long pending requirements for ATM’s, which brought a wave of new cases around the nation. There were important trends for more traditional claims that will continue in 2013.
There will be an increased emphasis by plaintiffs on claims based on alleged policies regarding regarding FHA and ADA compliance as opposed to incidents of non-compliance. Once of the basic economic problems for ADA and FHA plaintiffs is that the barriers to access encountered by any individual plaintiff may be modest, and once such modest barriers are remediated the case may become moot. Unless there is a substantial controversy the fees awarded even by a generous court may be less than what is needed to justify the lawsuit in the first place. Alleging a policy of discrimination allows an individual plaintiff to assert claims based on barriers to access he or she does not know exist and may never encounter. The case law in this area is mixed at best, and plaintiffs can be expected to expand the availability of policy and practice claims in the accessibility context. More
In the heated debate over the new ADA pool lift requirements the hospitality industry, which is the industry most affected, has argued that tort liability for misuse of the lifts is an important objection to their installation. Safety is important, of course, but this may be one case where liability is not a problem because ADA requirements preempt state law tort claims. The existing regulations requiring fixed lifts may reduce the risk of liability rather than increasing it.
Federal preemption of state law claims has complexities enough to satisfy any law professor, but the Supreme Court has set out one very clear rule: “A holding of federal exclusion of state law is inescapable and requires no inquiry into congressional design where compliance with both federal and state regulations is a physical impossibility” Florida Lime and Avocado Growers v Paul. This rule seems to apply directly to tort claims arising out of misused pool lifts. The 2010 Accessibility Standards give hotels and other pool operators no choice about the installation of pool lifts for new construction and renovations. Older pools must have lifts installed only if this is “readily achievable,” but the price of pool lifts seems to fall well within the range of costs that courts routinely find reasonable. Pool lift manufacturers offer models they say can be installed almost anywhere, so location is also no objection. From a purely economic standpoint the cost of installing a lift is far below the cost of defending even one ADA lawsuit over what was “readily achievable.” More