American Disability Act Claims

The Vexatious Litigant : An ADA Lawsuit

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).

The Americans with Disabilities Act was enacted with the purpose of eliminating discrimination against persons with disabilities. The disabled plaintiff does not even have to go to the establishment to be discriminated against; “he doesn't have to put himself in a position to suffer such indignities.” Just being in violation of the ADA means the individual would be discriminated against if he were to go to the establishment, and that is enough. The lawyers who do this often have a client file dozens of lawsuits based solely on an inspectors report.

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.

Federal Law

The ADA makes it illegal for businesses to discriminate against disabled individuals. To prove a violation of the ADA, a plaintiff must prove three facts. First, he must have a disability. Second, the business is a place of public accommodation. Third, he was denied full and equal treatment because of his disability. (Wilson v. Pier 1 Imports (US), Inc. (E.D. Cal. 2006) 439 F. Supp. 2d 1054, 1067.)

Under the ADA, a business may have discriminated against handicapped individuals because they have constructed and maintained “architectural barriers” which prevent disabled people from enjoying the business as any other person. (42 USC § 12182, subd. (b)(2)(A)(iv).)

The Department of Justice created regulations which have become known as the “Americans with Disability Act Accessibility Guidelines for Buildings and Facilities.” The Department of Justice’s Accessibility Guidelines listed the minimum requirements for ADA compliance. The Accessibility Guidelines provide such things as the number of handicapped parking spaces a business must have and the dimensions of the spaces, the slope requirements for a handicap ramp, counter height, etc. It is these standards which serve as the cornerstone of an ADA claim.

The ADA uses the Accessibility Guidelines to show a violation of the ADA. The ADA must also show the removal of the barriers can be readily achieved. A business can defend the ADA claim if it shows removal of the barriers is not readily achievable. The reality for many businesses is certain barriers can be removed for a minimal cost. ADA plaintiffs will focus on these things and know the businesses will face an uphill argument.

The Interaction of Federal Law and State Law

Being in compliance with local and state human rights statutes does not matter – is not a defense to a Federal ADA suit, nor does it matter when the restaurant or building was built, there is no grandfathering. Being in compliance in the past or being older than the law/regulations does not matter.

A Real, But Sad Case:

Molski, a paraplegic who has been confined to a wheelchair as a result of a motorcycle accident that paralyzed him, has made a business out of suing those who fail to comply with ADA regulations. As the Ninth Circuit describes it, "Molski has brought hundreds of lawsuits against inaccessible public accom-odations throughout California. Molski considered himself a civil rights activist who uses litigation to force compliance with the ADA; California businesses and a federal district court consider him a vexatious litigant who exploits the ADA and its state law counterpart for pecuniary gain." Jarek Molski, et al. v. M.J. Cable, Inc., etc. (2007 DJDAR 3911). At 3912.

Cable's Restaurant did not deny that it failed to identify and remove architectural barriers. Nor did it contend it could not afford to make required renovations. In fact, Cable's Restaurant did not call any witnesses in its defense at trial. Instead, its lawyers simply cross-examined Molski and his witnesses, including Cable's own vice-president who had been called by Molski to testify. The restaurant's trial strategy, apparently, was to discredit Molski by exposing his ulterior motive for bringing these lawsuits.

Here is what was learned on cross-examination:

  • Molski testified that he did not complain to any of Cable's employees about his access problems during or after his visit to the restaurant.

  • He had filed 374 similar ADA lawsuits as of October 2004.

  • His San Francisco attorney had filed 232 of those lawsuits and even more lawsuits had been filed since 2004.

  • He and his attorney averaged $4,000 for each case they settled and Molski did not actually pay any attorney's fees to his lawyer.

  • He had no employment besides prosecuting ADA lawsuits, despite his possession of a law degree.

  • He projected his annual income from settlements was $800,000.

  • Molski's ADA consultant testified he earned 95% of his income performing investigations for Molski's lawyer.Did this testimony make a difference? It did to the jury

After hearing Molski testify, the jury rendered a verdict against Molski. The jury apparently bought Cable's Restaurant's legal argument that Molski was not protected as an "individual with a disability" under the ADA, but instead was little more than a person operating a litigation business. After the jury's verdict in favor of Cable's Restaurant, Molski requested a new trial, but the trial judge denied the motion. Molski then appealed to the Ninth Circuit Court of Appeals.

The Ninth Circuit took little time to conclude that both the jury and the trial judge got it wrong. Molski and his ADA consultant provided undisputed testimony that identified a list of architectural barriers, many minor but some not, including the absence of accessibility signage on the bathroom door, excessive door pressure that made it difficult for a person in a wheelchair to open the bathroom door. The bathroom stalls were neither wide enough nor long enough to accommodate a wheelchair. Side and rear grab bars in the stalls were missing. The required looped handles for opening or closing the stall door were also not present. The towel seat cover dispenser and paper towel dispenser were too high. The bathroom sinks did not have levered hardware so persons with disabilities could turn the faucet on and off without difficulty. There was no insulation on the pipes underneath the sinks to protect persons in wheelchairs from being scalded by hot water pipes as they pull themselves close to the sink to wash their hands.

Where Does This Leave You ?

Unfortunately, many ADA plaintiffs live for technical violations of the Department of Justice’s Accessibility Guidelines and don’t care if the “barrier” actually prevents them from using the facilities. The ADA only allows a successful plaintiff to get an injunction to force remedial measures to bring the establishment into compliance with the guild-lines and to recover attorney’s fees against defendants.

The ADA plaintiffs are familiar with the proof requirements and the recovery of attorney’s fees. They know businesses will have to pay an attorney to defend them in a difficult action as well as the plaintiff's attorney. As this is a business for the ADA plaintiff, they usually are in it for a quick settlement for a reasonable sum (in the $3,500 to $10,000 range) and a promise by the defendant to change the facilities.

Obviously, the best defense for any ADA lawsuit is to review the Accessibility Guidelines and make any changes before a lawsuit is filed. Businesses should conduct inspections of any area covered by these guidelines. The Accessibility Guidelines spell out the detailed requirements, and businesses should confirm their facilities meet them to the letter. There are also experts who will review business facilities for ADA compliance for a fee. Once the ADA lawsuit is filed, it is often too late.

 

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