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In the latest decision against an Arizona “high frequency ADA litigant”, the United States District Court for the Central District of California ruled this week that cases like Brooke vs. Perry Family Trust, et al. have no place in Federal Court.

The plaintiff, Theresa Brooke, has filed hundreds of identical ADA lawsuits against Arizona and California hotels, including a half-dozen suits last week.  The plaintiff, a disabled resident of Arizona, contends that she was discriminated against by hundreds of hotel owners based on her disability.  She claims that these hotels violated the 2010 ADA Standards because they fail to provide permanent pool lifts at either or both the pool and spa.

In each case, Brooke alleges she called the hotels to “inquire whether the pool or Jacuzzi had a lift or other means of access for disabled persons” and the representative informed her that it did not.  Plaintiff then alleges she sent her “agent” – “an expert in ADA accessibility guidelines” – to visit the hotel, take pictures of the barriers and report back to her.  Plaintiff claims she frequently visits or intends to visit the area “in the coming months and for the indefinite future” for leisure and business.

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In a rare and decisive action, a Central District Court Judge dismissed an Americans with Disabilities Act (ADA) lawsuit filed by an Arizona disabled plaintiff who has recently filed a wave of over 70 ADA lawsuits against Southern California hotels.

The plaintiff, who claims she is confined to a wheelchair, called an Orange County hotel to book a room.  She asked the hotel representative whether the hotel pool and Jacuzzi had a pool lift or other means of access for disabled persons.  The hotel employee allegedly reported that the hotel had no pool lifts.  Thereafter, allegedly, plaintiff’s “agent,” and ADA investigator, visited the hotel, verified that there were no pool lifts, and notified the plaintiff of other ADA violations.  The plaintiff claimed that she regularly frequents the area where the hotel is located and plans to do so in the future.  If there was a pool lift, plaintiff claims, she would stay at the hotel in the future.

The plaintiff, Theresa Brooke, has filed over 70 ADA lawsuits against Southern California hotels in the past 6 weeks, “every single one of which” in boilerplate fashion alleges ADA violations based on inaccessible hotel pools and spas.  In dismissing the lawsuit, the Judge noted that the “deluge [of ADA lawsuits] is ongoing, noting plaintiff, it appears, would like to stay at every Orange County hotel that presently has an inaccessible Jacuzzi.”

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Amid Growing Concerns Over the Proliferation of ADA Lawsuits, Congress and the California Legislature Address Measures to Curb ADA Abuse

Since 2004, more than 20,000 ADA lawsuits have been filed in the country’s federal courts. The number of ADA filings in state courts is unavailable, but likely runs in the thousands. Nearly one half of all ADA lawsuits were filed in California with no end in sight.

From September 2013- December 2014 (the last time period the figures are available) more than 3,000 ADA lawsuits were reported to the California Commission on Disability Access (CCDA). According to the CCDA, more than one-half – 54% – of all construction-related accessibility complaints filed in California were filed by 2 law firms (one of the lawyers is fighting a State Bar suspension stemming from ADA litigation).

According to the CCDA, 46% of all complaints were filed by 14 plaintiffs seeking quick settlements rather than correction of the alleged access violations. For years, thousands of businesses, including many small minority-owned businesses, have been targeted by a growing number of repeat plaintiffs and law firms. This increasing trend has prompted state and federal action to curb ADA abuse.

For example, these findings prompted the California Legislature to enact Civil Code Section 425.55 which is intended to curb ADA abuse. Section 425.55 defines these serial plaintiffs and their attorneys as “high-frequency litigants” and requires specific procedural and substantive conditions to be met before they can file litigation.

For all who own or operate businesses serving the general public, it is important to know about state and federal efforts requiring would-be plaintiffs and their attorneys to provide a specific pre-filing notice and opportunity to cure before they can initiate litigation and how these new laws impact you. Thus far, there are no notice and cure requirements.

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Soon businesses with an online presence will be required to make their websites accessible to persons with disabilities or face litigation in state and federal court. The Americans with Disabilities Act (ADA) already requires businesses with a physical presence to comply with exacting and numerous standards (e.g., door width, counter height, sidewalk slope, etc.)  The Department of Justice will soon expand these standards to include strict requirements for website accessibility. Here are five essential facts for any business with a website:

  • Some courts have interpreted the ADA as requiring web accessibility today. (g. National Federation of the Blind v. Target Corp., (ND CA 2006) 452 F. Supp. 2d 946).  Courts are divided on whether companies with an exclusively online presence must make their websites accessible.  Earlier this year, a Vermont District Court ruled that Scribd, a California-based digital library that operates reading subscriptions on its website and mobile apps, was required to comply with Title III of the ADA by making its website and mobile apps accessible to blind subscribers.  National Federation for the Blind v. Scribd, 2015 WL 1263336 (D. Vt. March 19, 2015).  More recently, the 9th Circuit Court of Appeals in Cullen v. Netflix, Inc., Case No. 5:11-cv-01199-EJD (2015) affirmed its prior ruling that online-based retailers without retail facilities do not have to make their websites accessible to blind customers under the current standards of the ADA. Courts are currently resolving differences while awaiting further DOJ action. 
  • Plaintiff-side law firms are sending complaint letters to businesses complaining of online discrimination and demanding payments of approximately $25,000. 
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New Resource: The ADA Compliance and Defense Guide

Download your free copy here.

The Global Hospitality Group® of Jeffer Mangels Butler & Mitchell LLP (JMBM) is pleased to announce the latest publication in our We Wrote the Book™ series : The ADA Compliance and Defense Guide, a practical handbook for owners and operators of hotels, restaurants, golf courses, spas and sports facilities, banks and other financial institutions, retail stores, shopping centers, theaters, sports arenas, and other places of “public accommodation,” as defined by the Americans with Disabilities Act (ADA).

Co-authored by JMBM’s ADA Compliance & Defense Group Chairman, Martin H. “Marty” Orlick and JMBM’s Global Hospitality Group® Chairman, Jim Butler, the Guide reflects the complexities and ever-expanding requirements of the ADA.

About The ADA Compliance and Defense Guide, Understanding, preventing and defending claims and enforcement actions under the ADA

It will not surprise U.S. hotel owners and operators to learn that that business owners and operators in the U.S. have been subjected to more than 20,000 ADA civil lawsuits and DOJ enforcement actions since the ADA was enacted in 1991 – and most of those lawsuits were filed in the last 5 years. JMBM’s Global Hospitality Group® provides practical ADA compliance and defense advice for owners and operators. This book is an example and was written specifically to help owners and operators understand the challenges they face, encourage preventative compliance, and to prepare to defend ADA lawsuits.

Written in plain language, the Guide includes information on requirements for accessible websites, service animals, pool lifts, auxiliary aids, and the importance of developing company-wide ADA policies and procedures. Through numerous case studies, the Guide also addresses Department of Justice investigations and private plaintiff litigation.

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Since at least 2000, the U.S. Department of Justice (DOJ) has been advocating standardized website development and content to promote access to blind and low vision internet users.  In 2013, the DOJ withdrew its proposed Advanced Notice of Proposed Rule Making (ANPRM) which would have established standardized internet protocols by adopting the Web Content Accessibility Guidelines (WCAG) 2.0.

In 2006, we reported on the landmark case National Federation of the Blind v. Target Corporation, regarding “cyber accessibility” (a term we coined). Target was the first case in which any court ruled that the ADA applied to a retail website. With limited exception, the few courts that had addressed the subject uniformly held that the ADA only applied to brick and mortar architectural barriers, not to internet retail channels (Access Now, Inc. v. Southwest Airlines.)

Target argued that it complied with the ADA because its retail stores were fully compliant and that its website channel was not covered by the ADA standards.  The Court disagreed.  Plaintiffs’ class certification motion was granted.  Target paid a hefty sum and implemented WCAG standards to make its website accessible to blind and low vision customers.  The Target decision was followed with Rendon v. Valleycrest Productions Ltd.  Since Target, the DOJ and other agencies have imposed accessibility requirements for web content and services in Consent Decrees and Settlement Agreements with such industry leaders as Amazon.com, Netflix, H&R Block, Hilton International and others.

Website standards are imminent

The DOJ’s issuance of website standards is not a matter of “if”, but “when.” The regulations will “establish requirements for making goods, services, facilities, privileges, accommodations, or advantages” offered by state and local government agencies and businesses via the Internet, “specifically at sites on the World Wide Web,” accessible to persons with disabilities.
On November 25, 2014, the DOJ Civil Rights Division issued its Advance Notice of Proposed Rule Making entitled “Nondiscrimination on the Basis of Disability: Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations.”  These revised regulations, when adopted, will implement web site development standards which the DOJ has been working on for nearly a decade.

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FedEx sued for failure to provide effective auxiliary aids and services for hearing and speech impaired employees and job applicants

Effective communication with blind, low vision, deaf, hard-of-hearing, speech impaired and cognitively challenged employees, potential employees, customers and guests is one of the fundamental tenets of the Americans with Disabilities Act of 1990 (“ADA”). For nearly 25 years, the ADA has been the most sweeping civil rights legislation designed to provide persons with disabilities full and equal access to public accommodations, employment and potential employment.

In its latest effort to enforce the ADA’s effective communication requirements, the Equal Employment Opportunity Commission (“EEOC”) filed a lawsuit in a Baltimore federal court against FedEx, charging the overnight delivery giant with failing to provide basic auxiliary aids and services to effectively communicate with its deaf, hard-of-hearing and speech impaired employees and job applicants.

The suit accuses FedEx of not providing Qualified American Sign Language interpreters, Communications Access Realtime Translation (“CART”) services or closed captioned training videos during new hire orientation or staff and safety meetings to its employees and job applicants in violation of the ADA’s requirement that businesses provide such auxiliary aids and services.

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Here are some of the most Frequently Asked Questions on service animal issues under the Americans with Disabilities Act or ADA.

What qualifies as a “service animal?”
Businesses . . . may ask only two questions of individuals regarding their service animals . . .

Under the ADA, a dog or miniature horse that “is individually trained to do work or perform tasks for the benefit of an individual with a disability” qualifies as a service animal. The “work” or “tasks” performed by a service animal must be directly related to the individual’s disability. For example, the service animal might pull a wheelchair, guide a visually impaired person, or assist an individual with psychiatric disabilities.

Comfort animals and pets are NOT service animals. Comfort animals merely provide emotional support and are not individually trained to assist with a disability.

What can you ask a customer who enters your business with an animal?

Businesses and their representatives who come in contact with the public may ask only two questions of individuals regarding their service animals:

  1. Is the animal required because of a disability?
  2. What work or task has the animal been trained to perform?

What businesses may NOT ask:
Is my business required to provide service animal care such as food or a place for the animal to relieve itself?
Businesses may not ask anything else. For example, they may NOT ask Continue ›

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Failure to provide an Ounce of ADA Compliance is worth a Pounding by the DOJ
What you can learn from the DOJ’s settlement agreement with Starwood and The Phoenician

 

The Department of Justice (DOJ) continues to make the hospitality sector a target for enforcement of the Americans with Disabilities Act (ADA). Starwood Hotels and Resorts Worldwide, Inc. and The Phoenician are the latest to come to an agreement with the DOJ to make their properties ADA compliant. The settlement agreement was stunning to this ADA lawyer, because of its sheer simplicity and how an industry leader like Starwood could find itself the target of a DOJ investigation over these basic barriers. The compliance areas detailed in the agreement are routine, run-of-the-mill, ADA check-list items that could have been easily identified and corrected by Starwood itself. Instead, Starwood and The Phoenician were dragged through the expense, embarrassment and hassle of a 5-year government investigation. What were they thinking?

First, the DOJ investigation of The Phoenician and Starwood didn’t happen in a vacuum. Here is just a sample of what’s been going on:

  • At the recent 2013 National ADA Symposium which I attended, the former chief of the DOJ’s Civil Rights Division (the principal enforcement agency for the ADA), noted that the hospitality industry remains a prime focus of the Department’s civil rights investigations.
  • The DOJ recently announced that it settled an investigation of the Milford Plaza Hotel, NYC. The hotel’s owner agreed to bring the property into ADA compliance within a brief period of time, thus ending another multi-year investigation.
  • In September 2011, the owners of the top 50 Zagat rated restaurants in New York City received a 17-page survey form from the DOJ to determine their compliance with the accessibility requirements of the ADA. Most of the restaurants entered into voluntary compliance agreements, but in October 2012, the DOJ filed lawsuits against three of the restaurants. See DOJ sues 3 of NYC’s top Zagat-rated restaurants for ADA violations.
  • In 2010, the DOJ and Hilton Worldwide Inc. entered into a 45-page “comprehensive precedent-setting agreement under the ADA that will make state-of-the art accessibility changes to approximately 900 hotels nationwide.” The agreement includes not only Hilton-owned properties, but properties where Hilton is the manager or franchisor. In addition to the removal of architectural barriers, the agreement specifies changes in reservation policies and addresses website accessibility. See Hilton’s ADA Settlement with the DOJ: Precedent-setting agreement delivers more than removing architectural barriers.
  • In January 2009, I reported in the Hotel Law Blog the DOJ’s Times Square Manhattan Theater District “ADA sweep” of nearly 60 hotels. I represented one of those hotels and can tell you that DOJ investigations should be taken very, very seriously. See Is the DOJ’s ADA Compliance Survey Coming to Your City Soon? What to do when you receive the DOJ’s ADA Compliance Review questionnaire.

The DOJ settles 5-year ADA investigation of Starwood Hotels & Resorts Inc. and The Phoenician Hotel and Resort

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As we reported in January of this year, “The DOJ stunned both the hospitality industry and pool manufacturers when it proclaimed that only “fixed” or permanent pool lifts would comply with the new 2010 ADAAG Standards) to the extent “readily achievable.” (See ADA Defense Lawyer: Pool lift deadline of January 31, 2013 looms, but may be a diversion from enterprise-wide ADA compliance.)

The 2010 ADAAG Standards went into effect on March 21, 2012, but through the efforts of the American Hotel & Lodging Association and other industry organizations, the Department of Justice (DOJ) postponed the effective date for requiring fixed pool lifts to January 31, 2013.

Since January 31, 2013, a growing number of accessibility lawsuits against hotel owners and operators, alleging pool lift violations, have been threatened or filed in California by a single plaintiff living in Los Angeles County. Five such lawsuits were brought or threatened against Santa Monica, California hotel owners.

What is going on?

In each case, the same alleged physically disabled plaintiff visited a hotel and inquired about making a reservation. At that time, he also asked whether the hotel’s pool and spa had accessible pool lifts. If told the hotel lacked separate pool and spa lifts, the plaintiff (or the plaintiff’s retained investigator) visited the pool and spa to visually confirm the lifts were not available. Subsequently, the plaintiff threatened or filed lawsuits against the hotels claiming denial of full and equal access under the Americans with Disabilities Act (ADA). In addition to compelling the owners or operators to install compliant pool lifts, the lawsuits ask for attorneys’ fees, and minimum or actual damages under California’s Unruh Civil Rights Act and the Disabled Persons Act which laws are designed to prevent discrimination against persons with disabilities.

In California, serial plaintiffs and their lawyers have found these cookie-cutter lawsuits to be lucrative as plaintiffs can claim statutory damages, compensatory damages, treble damages and attorneys’ fees.

We expect to see the same in most other states were ADA lawsuit proliferate. For reference, the “Top 10” for ADA lawsuits are (from most to less) California, Florida, New York, Texas, Pennsylvania, New Jersey, Ohio, Hawaii, North Carolina and Michigan.

Our advice: Investigate, solve the problem with a swift defense, then look at the big picture. Continue ›