ADA TITLE III LITIGATION
Many if not most people are familiar with the Americans with Disabilities Act of 1990. Most, however, including real estate professionals and property managers, know of its impact upon "Places of Public Accommodation." There are several subtitles under the ADA, and most of us have heard only about Title I, which governs the hiring, testing and accommodation of the disabled. You will note from the title of this article that Title I is not the subject matter. Maybe later, but Title III is much more worrisome because it is the one title under the ADA that does not require notice to a putative defendant before filing a lawsuit. Almost every other civil rights law does require some form of notice or charge before a lawsuit can be filed. And because the U.S. Congress expressly provided plaintiffs in Title III lawsuits with the right to file suit without any notice whatsoever, it opened a can of worms beyond all comprehension.
Why are no-notice lawsuits so dangerous? Because they allow lawyers and any person with a disability, and add in an expert witness for extra money, to form a tight little group of serial litigants with the ability to sue upwards of 90% of all businesses that are open to the public. The number of potential "targets" used to be much smaller, but the law is now 21 years old, and many businesses that were once compliant have fallen out of compliance due to lack of maintenance. Parking lots age, signs fall down, striping wears thin, fixtures, handles and knobs break, and standards change,
So, Mr. Landlord or Mr. Tenant you ask, how does this affect me. Right smack dab in the wallet. Because like most civil rights statutes, there is a fee-shifting provision. A disabled plaintiff who sues a non-compliant tenant or landlord (or both) is entitled to recover his attorney's fees, expert witness' fees and costs of litigation (which is much broader than statutory court costs). In its infinite wisdom, Congress converted every disabled person into a private attorney general with the ability to sue any business that is open to the public (although they have learned that suing the land-owner is much more convenient and easier). Why the landlord? Because he, she or it isn't going anywhere, and is responsible in the first instance for the condition of the premises. Unless the tenant causes the noncom-pliance, he or she can blame the landlord for leasing illegal premises.
What seems odd to me is that very few plaintiffs lawyers engage in this type of practice. It is almost as if it were regarded as unseemly by the vast majority of practitioners. And of course it is, when you consider that it is the same group of plaintiffs, lawyers and experts who engage in this highly automated form of serial litigation, also known as "ambush litigation," "drive-by litigation," and "sport suing." Except that it is no fun for the defendant. In many of these larger structures that predate the ADA, remodeling can be downright expensive. Depending upon the use to which the structure is put, one or more accessible bathrooms may have to be installed, complete with accessible lavatories, grab bars, full length mirrors, wheelchair maneuvering room, lowered towel racks, paper and soap dispensers, etc, It truly does take an expert to get the features right, and different uses require different features. There are a few tricks of the trade that permit some alternatives or substitutions, but by and large, it is going to entail an expensive remediation effort. Naturally, the Department of Justice oversees this aspect of the ADA, while the Department of Labor has jurisdiction over Title I (Hiring and Employment). The DOJ investigates citizen complaints and can impose some hefty fines, regardless of whether the disabled person sues.
So, you now know that if you own a business that is open to the public, you can be sued by someone with arthritis (or any other conditions which limits their mobility or ability to grasp objects) because you have round door knobs, or the doors are too narrow, or the weather stripping at the bottom is more than half an inch high, or there is no wheelchair access, or the toilet flush handle is adjacent to the wall, or the door on the disabled stall opens in instead of out, etc., etc. It really does go on and on, but all of this can be found in the ADA Accessibility Guidelines (ADAAG) which is published by the DOJ and can be found online. But because missing one required item might leave you open to a lawsuit, it is better to hire an architect who knows what he is doing.
The obvious deficiencies are just that. Those are the conditions in and about the parking lot and common areas that are visible from outside the premises: lack of handicap parking {1 van-accessible marked space for every 25 spaces provided up to 100, which addresses 90% of most businesses); improperly located HP parking (must be near an accessible entrance and distributed appropriately around the larger, multi-store public busionesses; and access aisle from the bus stop, street or nearest public sidewalk. In Florida, all handicap parking must van accessible. An assessment must be made of slopes and grades, and attention given to the fact that other motorists cannot back out into an access aisle. Wheelchairs cannot easily be
Why are no-notice lawsuits so dangerous? Because they allow lawyers and any person with a disability, and add in an expert witness for extra money, to form a tight little group of serial litigants with the ability to sue upwards of 90% of all businesses that are open to the public. The number of potential "targets" used to be much smaller, but the law is now 21 years old, and many businesses that were once compliant have fallen out of compliance due to lack of maintenance. Parking lots age, signs fall down, striping wears thin, fixtures, handles and knobs break, and standards change,
So, Mr. Landlord or Mr. Tenant you ask, how does this affect me. Right smack dab in the wallet. Because like most civil rights statutes, there is a fee-shifting provision. A disabled plaintiff who sues a non-compliant tenant or landlord (or both) is entitled to recover his attorney's fees, expert witness' fees and costs of litigation (which is much broader than statutory court costs). In its infinite wisdom, Congress converted every disabled person into a private attorney general with the ability to sue any business that is open to the public (although they have learned that suing the land-owner is much more convenient and easier). Why the landlord? Because he, she or it isn't going anywhere, and is responsible in the first instance for the condition of the premises. Unless the tenant causes the noncom-pliance, he or she can blame the landlord for leasing illegal premises.
What seems odd to me is that very few plaintiffs lawyers engage in this type of practice. It is almost as if it were regarded as unseemly by the vast majority of practitioners. And of course it is, when you consider that it is the same group of plaintiffs, lawyers and experts who engage in this highly automated form of serial litigation, also known as "ambush litigation," "drive-by litigation," and "sport suing." Except that it is no fun for the defendant. In many of these larger structures that predate the ADA, remodeling can be downright expensive. Depending upon the use to which the structure is put, one or more accessible bathrooms may have to be installed, complete with accessible lavatories, grab bars, full length mirrors, wheelchair maneuvering room, lowered towel racks, paper and soap dispensers, etc, It truly does take an expert to get the features right, and different uses require different features. There are a few tricks of the trade that permit some alternatives or substitutions, but by and large, it is going to entail an expensive remediation effort. Naturally, the Department of Justice oversees this aspect of the ADA, while the Department of Labor has jurisdiction over Title I (Hiring and Employment). The DOJ investigates citizen complaints and can impose some hefty fines, regardless of whether the disabled person sues.
So, you now know that if you own a business that is open to the public, you can be sued by someone with arthritis (or any other conditions which limits their mobility or ability to grasp objects) because you have round door knobs, or the doors are too narrow, or the weather stripping at the bottom is more than half an inch high, or there is no wheelchair access, or the toilet flush handle is adjacent to the wall, or the door on the disabled stall opens in instead of out, etc., etc. It really does go on and on, but all of this can be found in the ADA Accessibility Guidelines (ADAAG) which is published by the DOJ and can be found online. But because missing one required item might leave you open to a lawsuit, it is better to hire an architect who knows what he is doing.
The obvious deficiencies are just that. Those are the conditions in and about the parking lot and common areas that are visible from outside the premises: lack of handicap parking {1 van-accessible marked space for every 25 spaces provided up to 100, which addresses 90% of most businesses); improperly located HP parking (must be near an accessible entrance and distributed appropriately around the larger, multi-store public busionesses; and access aisle from the bus stop, street or nearest public sidewalk. In Florida, all handicap parking must van accessible. An assessment must be made of slopes and grades, and attention given to the fact that other motorists cannot back out into an access aisle. Wheelchairs cannot easily be
