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Baker Law Offices, Phoenix Real Estate and Business Lawyers

Dave Baker: Nine-time Super Lawyers selectee and Certified Specialist in Real Estate Law

 

Alex Baker: Real estate transactions, litigation, tax liens and estate planning ... Super Lawyers Rising Stars honoree

 

 

ADA Compliance | August 2016

Defending Predatory ADA Complaints

In an ADA lawsuit, a successful outcome may depend on convincing the plaintiff's attorney that, to win, he is really going to have to work.

Property owners beware: Literally hundreds of lawsuits have been filed in Arizona this year by a few private plaintiffs against business owners alleging "damages" under the Americans with Disabilities Act (ADA).

Common allegations are non-compliance with such things as dimensions, number and striping of handicapped parking spaces and inadequate restroom facilities. These lawsuits seek compliance, damages and attorneys' fees. They are typically accompanied by discovery requests, the intent and effect of which are to persuade business owner to negotiate and pay an immediate settlement.

This is serious; being on the defense side of any ADA allegation is not a comfortable place to be.

While cloaking themselves as champions of the disabled, the plaintiffs are more likely looking for quick settlements from businesses who find it easier to settle than fight. These cases are being filed against apartment complexes, restaurants, strip centers and other commercial buildings. The allegations, while arguably technically true, are suspect, especially in the requirements that the plaintiffs have visited (or intended to visit) the property and intend to return.

Defenses

Business owners willing to fight back may find a legitimate defense here. Other defenses may be found in the answers to questions such as:

  • When was the property built?

  • Was it altered? When?

  • Is it an historic property?

  • Does the plaintiff have legal standing?

  • Are there non-parties at fault?

  • Is curing the violation structurally practical?

  • Is curing the violation economically feasible?

  • Are there alternatives to the plaintiff's demands that will resolve the accessibility issue?

Strategies

So, what should you do? If you have not been singled out for this yet, have a knowledgeable contractor inspect your property for compliance. If you do get served with a lawsuit, there are steps that can be taken.

  • Decide if you want to fight it. If the stakes are high enough to fight, an aggressive defense may test the commitment of the plaintiff to actually pursue, and dedicate the time and resources toward, their case.

  • Immediately correct any technical violations which may exist.

  • Make an offer of judgment for their early "provable" and reasonable fees.

  • Depose their clients to establish who really visited the site, when, and whether they intend to return.

The point is to make it clear to the plaintiff that he really is going to have to work if he hopes to win this case, and that he has a downside if he loses (if his demand does not exceed your offer, he is responsible for costs of the case).