A group known as the United African Asian Abilities Club (UAAAC), through its attorney David Wakefield, has been filing a large number of lawsuits against apartment complexes. The largely boilerplate lawsuits, filed mainly in Los Angeles and Southern California, allege violations of the Fair Housing Act due to accessibility conditions at the apartment property and/or website.
Below is a sample version of one of the group’s lawsuits, which is similar to others it has filed:
Title III of the Americans with Disabilities Act (ADA) regulates “places of public accommodation,” which covers nearly all businesses, commercial landlords, commercial tenants and their websites that are open to the public.
The basic rule is that “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any private entity who owns, leases (or leases to), or operates a place of public accommodation.” 28 CFR 36.201. The ADA applies to both the business itself and the landlord.
This requires that physical features of brick and mortar establishments meet certain standards. For example, accessible parking spaces must have a slope no greater than 2.1% with proper dimensions and signage. There is also a duty to provide “effective communication” under Title III of the ADA. This, at times, requires that American Sign Language (ASL) translators be provided free of charge and that websites be coded to allow blind users to use screen reading software on the website. Continue ›
Recently, there has been a flood of ADA lawsuits against small businesses in the City of Berkeley. Berkeley has historically been overlooked by serial ADA plaintiffs, seeing only about a few cases each year. However, it seems like these serial ADA plaintiffs have turned their attention to the City, which should, at the very least, force all Berkeley public establishments to take notice of ADA issues.
Below are three basis tips that can help protect your restaurant or business from being subjected to these serial ADA lawsuits.
CASp Inspections
A Certified Access Specialist (“CASp”) inspection is the first line of defense that should be conducted on all properties that are used as a public accommodations. Public accommodations are any and all commercial or noncommercial entities that are open to and serve the general public. These include restaurants, clothing stores, record stores, bars, hotels, etc. Continue ›
As many business owners and commercial landlords know all too well, the number of Americans with Disabilities Act (ADA) lawsuits appears out of control, particularly in California where approximately 40 percent of ADA lawsuits are filed. Why is this?
The answer lies in the legislative design. The ADA was signed into law under the George H.W. Bush administration in 1990. It was designed to avoid further government bureaucracy by allowing aggrieved individuals to enforce the law by filing private lawsuits with the courts, rather than having a governmental agency enforce the law.
While this approach sounded attractive on paper, and perhaps could have been if executed properly, it has instead given rise to a cottage industry of serial ADA plaintiffs who file dozens, hundreds, and sometimes thousands of ADA lawsuits.
Recently Thomas Dorobiala, through his law firm Apex Trial Law, has been sending a large number of complaint letters to various types of businesses alleging that the business’ website fails to comply with the California Unruh Civil Rights Act.
Specifically, the letter states that Mr. Dorobiala is hearing impaired and “unable to fully access your website because the website is not fully accessible to the hearing-impaired.” Generally, the letter will reference a video available on the website and the lack of closed captions available for that video. The letter is usually signed by Ryan M. Ferrell, Esq. or Thomas W. Kohler, Esq.
The Department of Justice has not yet clarified exactly what a website requires to be compliant with the law. The WCAG 2.1 AA standards were published by the nongovernmental W3C organization and are not legally binding. However, many businesses and some courts refer to them to help determine if features on a website are accessible. Generally, websites should be coded so that they are compatible for screen reading software, which blind users will use to listen to the website’s content. Hearing impaired users often seek closed captioning for video content. For more on website accessibility, see our blog here or the W3C introduction to WCAG standards here. Continue ›
Recently, Pacific Trial Attorneys has been pursuing claims against craft breweries throughout California for alleged Americans with Disabilities Act (ADA) and California Unruh Act website violations.
Pacific Trial Attorneys is a well-known plaintiff’s law firm that has filed hundreds of ADA lawsuits against various businesses, often using the same few disabled plaintiffs, such as Dominick Martin and Rusty Rendon. The lawsuits essentially state that the craft brewery’s website is not accessible for blind users, and thus, violates the ADA and/or California Unruh Civil Rights Act.
The letter generally looks like this:
Generally, individuals with vision limitations use screen reading software that scans a webpage and reads it aloud to them. Websites can be coded in such a way as to be more or less compatible with screen reading software. Continue ›
JMBM is proud to announce that two of its Americans With Disabilities (ADA) Defense attorneys, Martin H. Orlick and Stuart K. Tubis, have recently been recognized for their professional excellence. Martin, a partner in the firm and Chair of the ADA Compliance & Defense Group, has been named one of the 2023 Best Lawyers in America® for Real Estate Law. Stuart, an partner in ADA practice, has been included on the “One to Watch” list for Civil Rights Law.
Best Lawyers in America is based on a comprehensive peer-review survey in which tens of thousands of top lawyers evaluate the legal abilities of other lawyers within their practice areas. The “Ones to Watch” list recognizes lawyers earlier in their careers who have achieved outstanding professional excellence. Continue ›
In a recent decision by Judge William H. Orrick, the court reviewed a website for compliance with the Americans with Disabilities Act (ADA) and found that minor imperfections on a website that do not meaningfully hinder access to the business are insufficient to constitute ADA violations. Gomez v. Trinitas Cellars LLC, Case No. Case No. 3:21-cv-09006-WHO, Doc # 37 (N.D. Cal. June 17, 2022.
The ADA was passed into law in 1990, well before the popularization of the internet. Since then, of course, the internet has become an inescapable part of everyday life in America. The ADA, however, contains no mention of the internet. The closest it gets are generalized principles requiring businesses to provide “auxiliary aids and services” and ensure “effective communication.”
Americans with Disabilities Act (ADA) lawsuits under Title III are often filed against businesses and landlords. They can be defended, however, if the plaintiff who filed the lawsuit lacks standing in court. This is more common than it might sound.
In law, standing is a requirement for the party seeking a legal remedy. That party must show that they have sufficient connection to the alleged violation and have, or will have, harm from it. Standing is what prevents someone from bringing a lawsuit over something that doesn’t affect them, or on behalf of someone they have no real connection to. A plaintiff must have a real stake in the outcome of the litigation.
If an ADA plaintiff does not have a bona fide intent to do business with the defendant, then there is no standing because there is no harm to the plaintiff. Someone with a disability cannot just sue a business that he/she has no actual intent to ever do business with. There would be no harm for the court to remedy, and standing would not exist. The same principle applies to accessibility claims under California’s Unruh Civil Rights Act. Continue ›
Recently on March 18, 2022, the U.S. Department of Justice (DOJ) issued a “Web Accessibility Guidance” statement for state and local governments and public accommodations (including businesses) under Titles II and III of the Americans with Disabilities Act (ADA).
A copy of the Guidance document can be found here.
In the Guidance, the DOJ clarifies once again that the ADA applies to websites: “the Department’s longstanding interpretation of the general nondiscrimination and effective communication provisions applies to web accessibility.”
The Guidance also provides some examples of website accessibility barriers, including poor color contrast, lack of text alternatives for images, lack of labels for forms, and mouse-only navigation design. Continue ›
ADA Compliance and Defense Blog