Disabled access lawsuits have long had a predatory aspect to them. A large percentage of the suits target properties that pre-date the enactment of access laws. These properties were largely exempted from the Americans with Disabilities Act (ADA) and California disabled access regulations. However,
Congress didn’t want owners of exempted properties to ignore barrier removal which was “easily accomplishable and able to be carried out without much difficulty or expense.” Therefore, it added language encouraging these property owners to “remove barriers . . . when it is readily achievable to do so.” As predicted by the legislators opposing this bit of extra language, it has served as a loophole facilitating predatory lawsuits because it creates a vague standard for compliance and confusion about the applicability of the law to older structures. Further amplifying the litigation generating effect of this loophole is a California Supreme Court decision opining that any non-compliance with ADA standards is automatically a violation of California disabled access laws. Since only California access laws award plaintiffs thousands of dollars without proof of damages, California leads the nation in the number of access lawsuits. This combination of vague standards of compliance for old properties and thousands of dollars awarded to plaintiffs without proof of damages, serves as the perfect storm of predatory lawsuit generation.
While old properties make up the majority of properties victimized by these lawsuits, new properties are by no means exempt. Many lawsuits pray on minimal variations from standards of compliance, as well as ambiguities in such standards or conflicts between regulations of different agencies. Such things as door opening/closing pressure, bathroom mirror height, minor variations in slope, signage, and any variations relating to disabled parking (the most frequent subject of lawsuits) often serve as grounds for these lawsuits despite never having been a actual barrier to anyone other than a professional plaintiff.
Nevertheless, despite the unfairness of much of past access litigation, the lawsuits have had a positive overall effect on accessibility. Widespread fear of being sued caused many businesses to take a closer at their access compliance. Many lawsuits prayed on businesses that lacked disabled parking spaces altogether.
Now most California businesses have removed obvious barriers and installed basic access enhancements such as disabled parking spaces, which is all that the ADA ever intended them to do. However, a cottage legal industry has been created which must be sustained to survive. Therefore, there has been a trend of lawsuits relying on increasingly small compliance variations or ambiguities in the law. Below are some of these trends seen in my law practice:
1) Old disabled parking spaces: Lawsuits based on “faded” lines of disabled parking spaces. Missing signage or incorrect dimensions and measurements can also bring lawsuits.
2) Apartment Leasing Offices: Lawsuits against apartment building owners with leasing offices. Residential apartments are exempt from the law. The ADA applies only to “public accommodations,” e.g. retail, hotels, etc. While onsite leasing offices have some aspects of a retail establishment, typically their services relate only to the leasing of exempt residential property at that location. Thus requiring compliance for such leasing offices would result in an absurdity, i.e., requiring accessibility even when the end result is inaccessible residential property. However, no binding court decision has yet been rendered on this issue, and the lawsuits continue to be filed since most defendants are forced settle because of the legal expense of litigating.
3) Lawsuits regarding non-essential amenities: Public restrooms in businesses not required to have them, customer parking in unimproved areas of the property or in parking primarily provided for employees. Rather than causing these properties to upgrade to ADA compliant restrooms or disabled parking, due to expense, the property owners more often close the restrooms or parking to the public, resulting in no public benefit from the lawsuit.
The best strategy for avoiding litigation is strict compliance and/or hiring a certified access specialist (“CASp”) to review and certify your property. However, the latter strategy may backfire if you are not able to fully implement the CASp’s strategies and a litigant forces disclosure of the CASp report. Accordingly, you should consider hiring a CASp through your attorney so that his report is protected from disclosure by the attorney-client privilege and the attorney work product privilege. With respect to compliance, start with the portions of the property most visible from the exterior, especially parking. As noted above, it’s not enough to simply have disabled parking. It must strictly comply with ADA and Title 24 specifications and the paint and signage should be maintained in a relatively new condition.