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Boston-Providence | Charlotte-Shelby

ADA Lawsuits - "More Profitable than Narcotics"

 

 

The Americans with Disabilities Act law was intended to empower private citizens to bring claims against business that are not in compliance.

 

According to a Wall Street Journal article written in October 2015, disability lawsuits against small business are soaring.  These lawsuits were up nearly 55% over 2014.

 

In 2013 a circuit court of appeals decision found that someone who isn't necessarily a patron could be a "tester" of ADA compliance.  This decision cleared the way for individual plaintiffs to bring dozens, even hundreds, of lawsuits against multiple businesses, as serial testers.

 

Much has been written about the standing these testers have to sue businesses whose goods and services they really never had any intention of using, either in the past or in the future.

 

And there is a growing number of case law ruling on motions to dismiss these "test" cases with a focus on the legal standing of the tester to claim discrimination under the ADA.

 

In order to have standing to assert any claim a four part criterion has been applied by courts

 

1) proximity to the defendant's property

2) past patronage

3) definitiveness of plaintiff's plan to return

4) frequency of nearby travel. 

 

In Austin, TX, 115 businesses were sued for failing to comply with ADA and all of them were initiated by one law firm and most business owners were never warned or issued a complaint from their customer.

 

In Austin, the three biggest targets were:

  1. restaurants and bars

  2. convenience stores  and gas stations 

  3. retail apparel 

According to attorney David Peters with California Justice Alliance APC Firm: "Certain laws in the largest West Coast state make filing ADA lawsuits "unbelievably profitable...Among those laws is a state provision allowing a payment of $4,000 in damages for a violation. In Texas, the state human resources code allows for at least $300 per violation in damages...Honestly, this area of litigation has become more profitable than narcotics."

 

Some common items that are easy targets of testers, but can be  brought into compliance relatively inexpensively:

  1. Make sure the landlord or building owner is providing van accessible parking and signage

  2. Check the door opening force.  Easy adjustment to the closer for this.

  3. Check door hardware.  All doors have to be opened with a "closed fist"

  4. Confirm toilet room accessory mounting heights.  Things like paper towel dispensers, grab bars, mirrors, etc.

  5. Provide pipe protection under sinks

  6. Location and heights of HC signage for toilet rooms.

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