RECENT ADA LITIGATION:
Owners of existing commercial property should take note of the recent proliferation of litigation against business owners for alleged noncompliance with the requirements of the Americans with Disabilities Act (the “ADA”). Passed by Congress in 1990, the ADA is designed to protect Americans with disabilities against discrimination and to assure access to and enjoyment of places of “public accommodation.” The definition of “public accommodation” under the ADA is very broad and includes virtually all businesses of any type that are open to the public. Under the ADA, places of public accommodation are required to be fully accessible to, and independently usable by, individuals with disabilities. In addition, the Department of Justice adopted new ADA regulations, effective March 15, 2012. The regulations included the “2010 Standards of Accessible Design” which for the first time included specific accessibility requirements for a number of recreational facilities, including swimming pools. (See http://www.ada.gov/qa_existingpools_titleIII.htm.)
Since June of 2015 at least 117 lawsuits have been filed against many hotel owners in Arizona in connection with their swimming pools. The defendants range from small mom and pop operations to large national chains. The suits all were filed by a single Phoenix lawyer representing a woman resident from Pinal County with ambulatory disabilities claiming that the hotels violated the ADA because their swimming pools do not have fixed pool lifts and therefore are not “fully accessible to, and independently usable by, the plaintiff and other persons with disabilities.” The remedies sought in one of the complaints include declaratory and injunctive relief, closure of the hotel until a lift is installed, payment of attorneys’ fees of $7,250, reimbursement of court costs and compensation for damages suffered by the plaintiff in the amount of $5,000. No matter what the outcome of each of the lawsuits, each defendant is going to incur substantial costs – i.e. the cost of either settling or defending the lawsuit and the cost of installation of a lift that complies with the ADA.
Similar lawsuits are being filed throughout the country. A national advocacy group for persons with disabilities, Access Advocates, is using Facebook to actively recruit attorneys to join them to sue the owners of buildings that they believe are in violation of ADA standards. According to their web page “Access Advocates is on track to take on 1,000 cases per year within the next three years.” (See http://www.accessadvocates.com/litigating-attorneys-needed/#.) While increasing accessibility for persons with disabilities is definitely commendable– doing so through litigation is inefficient and unnecessarily costly for the business owners involved.
So what should you do as the owner, lessor, lessee or operator of a place of “public accommodation” in light of these lawsuits? First and foremost, be proactive. Review your facility for compliance with the ADA. A good place to start your review is the “ADA Checklist for Existing Facilities” found at adachecklist.org or the ADA National Network at 1-800-949-4232. In almost every case it will be less expensive for you to pay for any necessary renovation than to pay the cost of dealing with a lawsuit.