Arizona is quickly joining the ranks of California, New York and Texas as a hotbed for lawsuits arising under the Americans with Disabilities Act. Over the past six months, a handful of serial plaintiffs — known as “testers” — have filed hundreds of lawsuits against Arizona businesses.
First there was Theresa Brooke, a wheelchair-bound woman who filed more than 150 lawsuits against Arizona hotels because they lacked wheelchair-accessible lifts for their pools and hot tubs. The U.S. District Court of Arizona held that she had standing to bring these lawsuits despite the fact that she never actually stayed at — or even visited — the hotels.
Another wheelchair-bound plaintiff, Santiago Abreu, filed more than 20 lawsuits against Arizona restaurants and bars alleging an assortment of ADA violations. Most of the alleged violations arose in the bar area and restrooms. For example, Abreu has alleged that the bar service counters are not wheelchair accessible and that certain elements of the restrooms (e.g., stalls, sinks and urinals) violate the ADA.
As plaintiffs’ attorneys come to realize how potentially lucrative it can be to represent a disabled serial plaintiff, Arizona businesses should expect (and begin preparing for) another onslaught of ADA lawsuits.
By way of background, the ADA was enacted in 1990 with the goal of prohibiting discrimination against individuals with disabilities in all areas of public life. The purpose of the ADA was to make sure that people with disabilities have the same rights and opportunities as everyone else. The ADA is divided into five titles (or sections) that relate to areas of public life.
This article focuses only on Title III of the ADA — which prohibits private places of “public accommodation” from discriminating against individuals with disabilities. Places of public accommodation include privately owned, leased or operated facilities like hotels, restaurants, retail merchants, doctor’s offices, golf courses, private schools, health clubs, sports stadiums, movie theaters, etc. — basically, any business establishment open to the public.
Title III sets minimum accessibility standards for new construction of facilities that are public accommodations. Some businesses think that only new construction needs to be accessible and that older facilities are immune because they are “grandfathered.” This is incorrect. The ADA is a civil rights law — not a building code. Older facilities must be accessible to persons with disabilities if it is “readily achievable” to do so. “Readily achievable” means that access is easily accomplishable without much difficulty or expense. According to the ADA, “this is a flexible, case-by-case analysis, with the goal of ensuring that ADA requirements are not unduly burdensome, including to small businesses.” It is no surprise that plaintiffs and defendants often disagree on (and litigate) whether certain fixes are “readily achievable.”
For example, a restaurant that is sued because its restroom violates the ADA in several different ways may find that fixing some violations is readily achievable (e.g., lowering the mirrors and soap dispensers so that they are accessible to an individual in a wheelchair) while other violations would not be (e.g., removing concrete walls to create more space around the toilets).
In the case of Theresa Brooke, courts generally recognize that installing a pool lift is a readily achievable way to provide a disabled individual access to a pool or hot tub; thus, she was able to sue (and quickly settle) so many cases because the hotels were left with virtually no legal defense. For Theresa Brooke, her “pool lift lawsuits” were like shooting fish in a barrel. To compound the fact that the hotels often had no real legal defense, the ADA provides that prevailing plaintiffs are awarded their reasonable attorneys’ fees. This means a public accommodation that puts up a vigorous legal defense and loses would be on the hook for its own attorneys’ fees as well as the plaintiff’s. Often, it is the amount of attorneys’ fees that can be the single biggest motivator to quickly settle an ADA case.
I expect the number of ADA cases to continue to mushroom in Arizona. Public accommodations that want to be proactive — i.e., avoid getting sued and generate goodwill in the disabled community — should carefully review the 2010 ADA Standards for Accessible Design and consult with a knowledgeable ADA compliance professional (whether it be an architect, attorney, consultant, etc.). When it comes to the ADA, an ounce of prevention is worth a pound of cure.
Lindsay G. Leavitt is a litigator at Phoenix-based Jennings, Strouss & Salmon, PLC. He practices in the areas of commercial litigation, personal injury and administrative law as well as labor and employment.