Recently we have seen a noticeable uptick in so-called American’s with Disability Act (“ADA”) “Drive-by” suits. These suits are labeled as such because plaintiffs often ride around neighbors and areas looking for ADA violations and then catalogue the alleged violations of the ADA via photographs. These business owners usually must fix any non-compliant issues (sometimes at a cost of several thousand dollars) or face new “plaintiff” suits at the same location on the same or similar violations. And because the Federal ADA has a fee-shifting provision, they may also pay the plaintiff’s attorneys fees and costs (assuming the court grants such relief).
The ADA Drive-by suits often are difficult to litigate because the dollar amount in controversy is less than the costs of litigation, so our clients (even though they may want to litigate these matters) usually end up settling for a monetary payment to the plaintiff and an agreement to remediate the site to address non-ADA compliant issues.
DISPELLING A TROUBLESOME AND POTENTIALLY COSTLY MYTH
Perpetuating these types of lawsuits is a myth that: if my building/location was built before 1992 (the effective date of the ADA), “it is grandfathered in,”so “I don’t need to comply with the ADA.” This is categorically not the case. The ADA contains no such “grandfathering” language and the existing case law from most, if not all, federal circuits makes it clear that “places of public accommodation” must comply with the ADA to the extent that compliance is “readily-achievable”; regardless of the date when the facility was built. “Readily-achievable” is reviewed on a case-by-case basis requiring a fact-intensive examination of the non-compliant location (using a lengthy list of inquiries), and means “easily accomplished without much difficulty or expense.” Generally “architectural barriers” must be removed if it is technologically and economically feasible.
TRENDING: VIRTUAL DRIVE-BYS AND SERVICE ANIMALS
The East and West-Coast Federal Circuit Courts have seen a significant increase in ADA “Virtual Drive-By” suits related to corporate websites (usually associated with places of public accommodation, e.g. restaurants, hotels, etc.) and “Service Animals.” If other lawsuit-related trends are any indication, soon other parts of the country will see an increase in these suits as well.
Generally corporate websites are targeted for failing to provide accessibility, including for individuals with low-visual acuity, queues to improve functionality for physical and mental impairments, etc. Again, ADA compliance is reviewed on fact-intensive, case-by-case basis. There are no federally-promulgated standards for website accessibility. Many of the federal courts review website compliance based upon standards set forth by the World Wide Web Consortium (W3C) Web Content Accessibility Guidelines.
Similarly, lawsuits alleging failure to accommodate “service animals” have increased substantially over the past few years. The prevailing case law narrowly defines “service animals” as “any dog that is individually trained to work or perform tasks for individuals with physical, sensory, psychiatric, intellectual, or other mental disabilities.” Therapy and/or “emotional support” animals are not service animals. Most of the lawsuits in this area stem from a lack of a policy addressing “service animals.” We can assist clients in drafting these policies, including questions employees can and cannot ask in assessing whether a particular animal is a “service animal.”
THE FUTURE OF ADA SUITS
ADA suits are increasing nationwide. Most of the time, these cases are not covered by insurance, which leaves clients bearing the brunt of the costs and expenses to litigate or respond to the suits. MMB has handled more than 20 of these cases over the past couple of years, so we are familiar with the trajectory of these cases and can quickly assess our client’s exposure and help them navigate the case with these attorneys.
In representing landlords, we recommend language in leases shifting the cost to the tenants for ADA matters; this will not necessarily prevent our owner/operator/landlord clients from being sued (the ADA allows owners, operators and tenants to be sued regardless of what it says in the lease), but it will help defray some of the costs of responding. For our tenant clients, responding quickly to an ADA suit can help avoid any unnecessary and duplicative costs incurred by the landlord/owner/operator (especially if the lease requires defense/indemnification for suits, including under the ADA).