Look Out For Drive-By ADA Lawsuits: Are You Ready?
Over the past several years, hoteliers, retailers and restaurant owners across the country have been slapped with thousands of private lawsuits for failing to meet the precise guidelines of the Americans with Disabilities Act (ADA). Often these lawsuits are brought by individuals who are not patrons of these establishments. Rather, they visit the establishment for the express purpose of finding a violation of the ADA and filing suit. These actions, known as “drive-by” lawsuits, are on the rise and are costing the hotel, retail and restaurant industries millions of dollars per year.
Under the ADA, places of public accommodation such as hotels, retail stores and restaurants must be accessible to guests with disabilities. Every few years, the ADA Accessibility Guidelines (http://www.access-board.gov/ada) are updated and all public accommodations (businesses and non-profits alike) are expected to review their facilities for compliance and make changes accordingly. Examples of accessibility issues include providing disabled parking, installing wheelchair ramps, widening doorways and removing other barriers to accessibility.
If a public accommodation is not in compliance with the most up-to-date guidelines, an individual (or individuals) may bring a lawsuit in court alleging that the business violated the ADA. Currently, the ADA does not require that individuals give the businesses notice of the alleged ADA violations before filing suit, so these lawsuits are often unexpected.
In a typical “drive-by” lawsuit, a disabled person visits various businesses to look for potential ADA violations. If any violations are discovered, the person will file a lawsuit against the business and seek repairs and attorneys’ fees and costs (which are allowed under the ADA). Rather than face expensive litigation, businesses will often settle these suits out of court for a modest sum — around $4,000 to $6,000.
The following case is a perfect example. In Martinez v. Columbia Sportswear USA Corp., et al., a case originating in California, a plaintiff who had filed over 160 other similar lawsuits sued 20 California retail stores and the owner of an outlet mall, alleging ADA violations based on “barriers to access.” Eighteen businesses settled with that plaintiff, but settlement did not insulate some of them from additional ADA lawsuits by the same plaintiff’s attorney. Jon D. Meer and Myra B. Villamor, Denying Serial ADA Plaintiffs Access to Your Pocketbooks: The Case for Fighting: A Success Story, Lexology, May 29, 2012, http://www.lexology.com/library/detail.aspx?g=b930b3a3-b5bd-4582-a59d-c3a588b06c87.
Because of these lawsuits, some states have started to take action. In October 2012, California enacted a new law that requires individuals to notify the offending business of the alleged ADA violation and allow the business time to correct the problem before filing suit. The goal behind this law is to encourage businesses to spend the time and money to fix the barrier to accessibility instead of paying the money to these “drive-by” plaintiffs and their attorneys.
There is no similar law in Washington at this time so it is important for businesses to be proactive in preventing these lawsuits. Businesses should be familiar with the ADA’s Checklist for Readily Achievable Barrier Removal (http://www.adachecklist.org/doc/fullchecklist/ada-checklist.pdf) and use this checklist to conduct an internal audit of their public facilities. The checklist gives helpful guidance and step-by-step instructions on how to measure various spaces to ensure compliance. The checklist is updated every few years so it is important for businesses to become familiar with the ADA’s rules and regulations and conduct yearly audits as the checklist changes.
To ensure an accurate audit, businesses are also encouraged to seek an outside audit. The Northwest ADA Center, which has provided accessibility surveys for hospitals, hotels and restaurants, is an informative resource for businesses seeking an outside audit (http://www.dbtacnorthwest.org).
It is important to note that neither an internal nor an external audit are privileged (i.e., protected from discovery in litigation), even though they may be labeled confidential. By working with your attorney and having the attorney initiate and direct the audit, it is likely that the attorney-client privilege will attach, providing confidentiality of the audit should litigation arise.
Needless to say, after conducting an audit of facilities, either internal or external, immediate steps should be taken to remedy any problems discovered. If the problems are extensive and prohibitively expensive, the business should put together a long term plan to repair the violations over a period of time. This step may not prevent a lawsuit, but will demonstrate to the court the good faith steps taken to remedy accessibility problems.
Ultimately, the only thing a business in Washington can do to prevent a “drive-by” lawsuit is to be in compliance with the ADA and be proactive in addressing guest complaints. Finding out if your facility makes the grade—and taking the steps necessary to get your facility in line with ADA guidelines—will not only reduce the risk of a lawsuit, it will also make your facility safer for all guests.
If you have any questions or concerns, please feel free to contact any member of our Retail, Hotel & Restaurant team.