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
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.
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?
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
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).