Earlier this year, I wrote a brief post on what I saw as a spike in the number of claims brought in Silicon Valley under the Americans With Disabilities Act, after several of my commercial real estate clients were sued for alleged ADA violations. That piece evoked many similar observations, and was the genesis for a Santa Clara County Bar Association presentation on local ADA practice that I spearheaded in May. While the ADA was meant to improve the everyday activities of Americans with physical or mental impairments, some have begun to wonder if the enforcement of this law has begun to resemble what one local business owner calls “legal graft”.
ADA violations in California have been included under the Unruh Civil Rights Act since 1992, when that law was amended to include those claims. As a result, ADA plaintiffs here can claim treble damages and attorneys’ fees, as well as statutory damages of $4,000 for each visit made to a non-compliant business, regardless of the number of actual ADA violations. Given this statutory environment, it is unsurprising that California accounts for 42% of all ADA litigation nationwide.
Since the ADA bars discrimination against persons with impairments in their ability to perform activities such as walking, sitting, reading, seeing, and communicating, and attempts to “level” their access to businesses and publicly-available business services, there has also been a recent upsurge in claims arising from access issues with public websites. With money damages as well as attorneys’ fees and costs allowed for plaintiffs in New York and California (noted above), those states have seen a marked increase in the rate of federal ADA filings. In 2017, for example, California had the most ADA filings in the country with 2751, a 16% increase in filings from the prior year.
One of the most glaring and troubling aspects of the current state of ADA litigation, in my view, is the apparent targeting of small businesses by disabled rights activists and the small group of law firms that support their efforts. In recent years, this practice has drawn a great deal of unfavorable public reaction due to the perception that these cases are brought in a random and capricious manner. One such case was profiled in my local newspaper, the Los Altos Town Crier, and seems typical: The Super 8 Motel on El Camino Real in Mountain View was sued by Scott Johnson and the Center for Disability Access, who have filed hundreds of similar cases around the state, alleging a litany of ADA violations at the motel, including a lack of equivalent accommodations and inaccessible parking stalls and service counters.
On the other hand, attorneys who bring these cases stress that this litigation ultimately benefits the public. “I see so many hit pieces on Scott Johnson…‘Why doesn’t someone stop him?,’ ‘How does he get away with this?’….Folks only ask these questions because the articles…paint a picture of an opportunist grifter suing innocent businesses under some sort of loophole. That is simply not the case. … Congress vested a right-to-sue in individuals – like Scott Johnson – so that those folks could be the primary enforcement mechanism,” observed Russell Handy, one of the attorneys with the Center for Disability Access. “These suits have made California one of the most accessible states in the country,” according to Handy.
Since older buildings are likely to have ADA violations, attorneys regularly advise their commercial real estate clients to identify problems and upgrade their facilities in order to comply with the law, given the high risk and cost of ADA lawsuits. One of the specific topics addressed at the SCCBA’s ADA program in May was what property owners and business owners should do to minimize the chances of getting sued, including having their properties audited by a certified access specialist (“CASp”). Identifying violations and having them fixed quickly can save time and money in avoiding litigation; in the event of a lawsuit, the court will require that any proven violations be cured anyway in addition to awarding damages, attorneys’ fees and costs, so it is a good idea to take care of that work in advance before someone sues. Still, there is no quick fix or sure-fire way to protect business owners against an ADA lawsuit.
Not all ADA defendants choose to pursue such a pragmatic course of action, however. One restaurant owner in Fresno who was sued under the ADA responded instead by challenging the tactics of the law firm that represented the plaintiff. After conducting her own investigation, the owner sued the law firm representing the ADA plaintiff under RICO, the Racketeer Influenced and Corrupt Organizations Act, a favored weapon against organized crime and drug trafficking, accusing the law firm of wire fraud and mail fraud; that lawsuit remains pending. Nevertheless, as a result of the expense of the ADA claims, the restaurant closed down.
While the status quo for ADA lawsuits is clearly untenable, the chances of legislative reform at the present time are low. Especially in these divided times, finding common ground on policy matters remains elusive. One such effort, H.R. 620, the ADA Education and Reform Act of 2017, was passed by the House in 2018; it required any person making an ADA claim to first give the owner written notice, provide the owner 60 days to acknowledge receipt of the claim, and then allow the owner 120 days to perform repairs before bringing suit. This bill now seems to be permanently stalled, however. Until meaningful reform can be achieved, the best course of action appears to be vigilance in monitoring access issues and prudence in dealing with them.