The Americans with Disabilities Act (“ADA”) is a fine piece of legislation, with a laudable goal: making public spaces accessible and truly usable for people with disabilities. What many people, including business and property owners responsible for ensuring compliance with the ADA, may not realize, is that the ADA contains extremely specific and detailed requirements. Restroom sign an inch too high? Displays that narrow your shop aisles? A crack in the sidewalk that changes the slope? All violations of the ADA. I’m not trying to suggest that these requirements should be done away with or changed. The problem arises due to the lack of notice: an out-of-place paper towel holder can result in a costly federal lawsuit without any prior notice to the business owner that anything is wrong.
Why would a plaintiff file a federal lawsuit over an out-of-place paper towel holder? Or, a more realistic question: how could a plaintiff find an attorney willing to file to do so? One need only look to the sole available remedy: injunctive relief requiring the business or property owner to remedy the ADA violation, or “barrier to access,” alongwith an award of attorneys’ fees. 42 U.S.C. §§ 12188(a) and 12205. While some plaintiffs are genuinely concerned about accessibility, others are paid a pittance for the use of their name by attorneys who then file lawsuits alleging ADA violations,[1] in which remedying the alleged violations takes a backseat to collecting attorneys’ fees.[2]
Over 6,000 ADA lawsuits were filed in Florida between 2012 and 2017, more than half of which were filed by just 12 plaintiffs.[3] These abusive ADA suits – which often target small business owners who lack the financial wherewithal to put up much of a fight – have been such a problem that both the Florida state government and Congress have now become involved.
Last year, the Florida legislature created a new law, codified at §553.5141, Fla. Stat., that allows business and property owners to hire a qualified expert to inspect the property. If the property complies with the ADA, the expert can issue a certificate of conformity to be filed with the state. If it does not, the business or property owner can develop a remediation plan, to be completed within 10 years, which would be filed with the state. In any ADA lawsuit, the court would be required to consider the certification or remediation plan when determining if the plaintiff’s complaint was filed in good faith and if the plaintiff is entitled to an award of attorney’s fees.
Legislation passed earlier this year by the House of Representatives goes even farther, requiring potential ADA plaintiffs to provide written notice to business and property owners of the existence of any alleged violations. The owner would then have time to either remedy the barriers to access or provide the potential plaintiff with a written plan to do so. If the owner fails to do so within the allotted time, only then could suit be filed. The legislation has yet to come to a vote in the Senate. However, it seems clear that the legislative branch of government, at both the state and federal levels, is coming to recognize the problem discussed in Rodriguez v. Investco, L.L.C., 305 F.Supp.2d 1278, 1282, n. 4 (M.D. Fla. 2004):
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. In the meantime, what is a business owner with no plan under §553.5141 to do if she finds herself defending an ADA lawsuit based on technical violations? Often, the quickest, least expensive course of action will be to reach out and come to a settlement with the plaintiff, which will almost certainly involve both remedying the violations and paying some amount of attorneys’ fees. Otherwise, to the extent achievable, a business owner should fix the violations as quickly as possible. Facilities built before January 25, 1993, which are generally the targets of these type of ADA suits, are not required to meet the exacting design and implementation standards to which new construction is held under the ADA. Gathright-Dietrich v. Atlanta Landmarks, Inc., 452 F.3d 1269, 1273 (11th Cir. 2006). Instead, barriers to access must be removed where such removal is readily achievable. 42 U.S.C. §12182(b)(2)(A)(iv); Gathright-Dietrich at 1273. “Readily achievable” means “easily accomplishable and able to be carried out without much difficulty or expense.” 42 U.S.C. §12181(9).
If the violations can be remedied quickly, it may be possible to obtain judgment in favor of the defendant: in an ADA case, “the Court may properly grant summary judgment on any claim that is moot based on Defendant’s implementation of permanent, structural modifications.” Access 4 All, Inc. v. Bamco VI, Inc., 2012 WL 33163 at *6 (S.D. Fla. 2012). In Deleo v. Cakmis Enterprises, Inc., 1:16-cv-00051-MW-GRJ (N.D. Fla. 2016), we successfully defended an ADA claim by working with our clients to remove the barriers to access swiftly. Upon our motion for summary judgment, Judge Walker dismissed the plaintiff’s claims with prejudice and denied her request for attorneys’ fees based upon Buckhannon v. West Virginia Dept. of Health and Human Resources, 532 U.S. 598, 610 (2001) (rejecting the “catalyst theory” as a basis for recovery of fees and costs in ADA cases).
Acting quickly can defeat these abusive suits – while still achieving the ADA’s intended goal of increasing accessibility for all.
Authored by: Krista L. B. Collins
LINKS TO ARTICLES:
[1] Ken Barnes, Congress Should Take Action on ADA ‘Drive-By’ Lawsuits, Forbes, Dec. 14, 2017, at https://www.forbes.com/sites/realspin/2017/12/14/congress-should-take-action-on-ada-drive-by-lawsuits/#4e98c7776f6f.
[2] Melanie Payne, Are ADA Lawsuit Plaintiffs Hucksters or Heroes?, News-Press, Mar. 30, 2017, at https://www.news-press.com/story/news/investigations/melanie-payne/2017/03/30/ada-driveby-lawsuits-activism-scam-melanie-payne/99143134/.
[3] Id.
