Magazine article Journal of Property Management

Curbing "Drive-By" ADA Lawsuits

Magazine article Journal of Property Management

Curbing "Drive-By" ADA Lawsuits

Article excerpt

More than a quarter century has passed since the Americans with Disabilities Act (ADA or the "Act was signed in 1990, marking one of the most comprehensive steps toward protecting the rights of millions of Americans living with disabilities. Almost two decades later, the ADA Amendments Act of 2008 was enacted in response to Supreme Court decisions that narrowly defined "disabled." The Amendments revised ADA terms, broadening the scope of limitations that are covered by the Act. Finally, in 2010 the Department of Justice further broadened that scope by approving several changes to Title III of the Act, which focuses on accessibility for buildings, nondiscrimination in public accommodations and commercial facilities.

Unfortunately, the broadened language that ensures disabled people receive necessary accommodations has opened the floodgate on lawsuits, specifically "drive-by" lawsuits.

THE DANGER OF DRIVE-BYS

A drive-by lawsuit occurs when an attorney visits a property looking for often unintentional and unknown Title III accessibility violations. These infractions usually involve easily-overlooked technical details, such as the excessive height of door handles, improper signage or faded handicapped parking space lines.

Upon identifying a violation, the business is typically sent a demand letter. This correspondence is usually the first time a property owner learns of the issue. Upon receipt of a demand letter, there are two options given; pay a sizable settlement and correct the violation, or go to trial.

While the ADA does not allow the awarding of damages to plaintiffs, in extreme cases punitive action may be imposed by the Department of Justice in a separate suit. Even without damages, a defendant can be responsible for a substantial amount of money. In addition to their attorney's fees and the costs of correcting the violation, the defendant is often responsible for the plaintiff's attorney's fees. By trial's end, these costs can add up to a hefty bill, depleting funds that could have been spent improving property accessibility.

Every ADA accessibility violation should be taken seriously and repaired expeditiously. What makes drive-by lawsuits so troublesome is the lack of a "notice and cure" provision giving the property owner a reasonable amount of time to fix the issue before being sued.

PUTTING ON THE BRAKES

Several bills were introduced in Congress in hopes of stopping these drive-by lawsuits. The "ADA Notification Act" and the "ADA Compliance for Customer Entry to Stores and Services (ACCESS) Act" are two pieces of legislation that were introduced multiple times but ultimately failed to gain momentum. Both bills would have required defendants to receive written notification that included specific details pertaining to the alleged violation, and created a remedial period of 90 days and 60 days, respectively.

Currently, the "ADA Education and Reform Act of 2015" (H.R. 3765), introduced by U.S. Representative Ted Poe, is awaiting a floor vote in the U.S. House of Representatives. Like the previously introduced bills, H.R. 3765 sets demand letter requirements to ensure alleged violations can be easily identified and provides a period of 120 days to correct the violation before a lawsuit may be filed. The bill is unique in that it not only creates criteria required for litigation to continue but also creates a model program promoting alternative resolutions such as mediation. …

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