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Federal court condemns frivolous, serial ADA litigation which subverts the noble purpose of the ADA and the entire legal profession

On April 16, 2012, an article appeared on the front page of the New York Times about the proliferation of lawsuits brought under the Americans with Disabilities Act (or ADA) against small businesses and portending a wave of cases to come. Indeed, lawyers from Florida and other states have joined forces with local attorneys to file scores of ADA lawsuits against small businesses, many of which are owned by minority entrepreneurs.

On March 28, 2013, a Federal Judge in the Eastern District of New York excoriated plaintiff Mike Costello’s attorneys for filing scores of frivolous ADA lawsuits against mom-and-pop businesses over technical or non-existent deviations from the ADA Standards only to line their own pockets. Costello v. Flatman, LLC, 11-CV-287.

Dozens of “boilerplate” ADA lawsuits

In 2011, the plaintiff, Mike Costello, filed a complaint against a Subway franchisee and his landlord under the ADA and state and city New York Human Rights laws. The same day, the plaintiff and his lawyers filed seven other identical ADA lawsuits against small businesses located within a two-block radius of the Subway store. Costello later amended his complaint to bring in another defendant who ignored the lawsuit, resulting in a default being taken. After the Court issued a $14.31 default judgment, plaintiff’s counsel filed a motion for fees and litigation costs in the amount of $15,172 supposedly incurred in prosecuting the action. [Note: This is not a typographical error. The damages were fourteen dollars and thirty one cents. The attorneys’ fees sought were more than fifteen thousand dollars.]

The Judge noted that in a boilerplate complaint, Costello alleged that he is disabled, required a wheelchair for mobility, and that he visited a Subway restaurant where he encountered various ADA barriers which prevented him from enjoying the goods and services offered at Subway. The plaintiff was represented by two law firms, one from New York the other from Florida. The Court found that together, these attorneys filed dozens of boilerplate ADA lawsuits alleging very similar barriers only to force the defendants to pay money to settle the cases. Continue ›

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Since January 2005, 16,530 lawsuits alleging violations of the Americans with Disabilities Act (“ADA”) have been filed in federal courts across the country. More of these lawsuits were filed in California than in any other state. Some believe that California is a hotbed of ADA litigation because California law awards damages and attorneys’ fees to private plaintiffs for defendant’s ADA violations — treble damages, with minimum statutory damages of $4,000 (prior to the passing of this Senate Bill), and punitive damages. An unknown number of accessibility cases have been filed in California state courts, and countless more claims have been threatened against mostly small business owners.

Past efforts to curtail ADA litigation abuse in California have been marginally successful. Unfortunately, the latest California legislation (SB 1186) may also provide limited relief from abusive ADA litigation. Key provisions of the new law became effective January 1, 2013. California SB 1186, through comprehensive amendments to a number of California laws, including provisions of the California Civil Code (Sections 55.3 et seq.), was intended to provide protection for the owners and operators of public accommodations who are making a good faith effort to comply with the ADA.

An overview of the main provisions of the new California law and our ADA Defense Lawyer observations “from the trenches” regarding the new law follows. Continue ›

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Will your city and restaurant be next?

You have worked all your life to get top Zagat ratings for your restaurant. After years of hard work, you’ve made it! And because of that, food lovers from around the world will beat a path to your door.

But, so too will the Department of Justice (DOJ), as the owners and operators of Manhattan’s top 50 Zagat-rated restaurants found out in September of 2011.

That is when each restaurant received a 17-page survey form, courtesy of the Civil Rights Unit of the U.S. Attorney’s Office, Southern District of New York (SDNY), for the purpose of determining compliance of their establishments with the accessibility requirements of the Americans with Disabilities Act or ADA.

Then, in October 2012, the DOJ filed a lawsuit against the owners and operators of 3 of those restaurants. All of the named defendants are part of the Rosa Mexicano restaurant chain. The lawsuit alleges numerous violations of the Americans with Disabilities Act of 1990 (ADA).

Here’s what happened and how the Rosa Mexicano chain could have avoided the lawsuit. Continue ›

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January 31, 2013 is fast approaching and once again our phones are ringing off the hook and the emails are streaming in. Our hospitality clients want to know the latest action being taken by the Department of Justice (“DOJ”) on the Americans with Disabilities Act requirements for pool lifts at pools and spas at hotels, resorts, country clubs, golf and tennis facilities and other places of “public accommodation.”

So here is where things stand.

The pool lift controversy continues to make a splash, but is it a diversion from enterprise-wide ADA compliance?

The latest update is that the DOJ has not yet further delayed the January 31, 2013 implementation date.

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 (effective March 21, 2012) to the extent “readily achievable.” Portable pool lifts installed on an as needed basis are prohibited unless it is not readily achievable, in which event a portable lift may be used if it is properly anchored.

Due to the efforts of industry groups like American Hotel & Lodging Association and pool and spa organizations, the DOJ postponed the pool lift effective date from March 21, 2012 to January 31, 2013.

The DOJ’s published position is that pool lifts need to be available at each pool and spa (although only one lift is required at a “cluster” of spas) during all pool and spa operating hours. The DOJ has mandated that only “fixed” pool lifts may be installed at each location unless the business can establish that such installation is not “readily achievable.” In such event, a portable pool lift may be permitted if it is properly secured and in place during operating hours.

All indications are that the DOJ remains intransigent that the pool lift requirement will be enforced on January 31, 2013 and pool lifts must be “fixed” to the extent readily achievable. A determination of what is “readily achievable” requires a legal opinion based on the facts of each case.

The ADA pool lift requirement — Situation summary
In September 2012, the DOJ announced it would extend the fixed pool lift requirement to January 31, 2013. Since then, the pool lift controversy has drawn little public attention, until now. Industry groups continue to work with legislators and DOJ officials to provide a greater degree of certainty and “real world” practicality to the pool lift controversy. Those close to the source believe that the DOJ will affirm the implementation date and its position that fixed pool lifts are required where readily achievable. The pool lift train left the station and those in the know believe the DOJ and disabled advocacy groups will enforce the “fixed” pool lift requirement January 31, 2013. We know of several lawsuits filed over the lack of pool lifts after March 21, 2012. We also know of a number of plaintiff’s lawyers who have been waiting for February 1, 2013 to make their splash into pool lift accessibility litigation.

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The DOJ extends pool lift deadline

Today, the Department of Justice announced that it is extending the ADA pool lift deadline from May 21, 2012 to January 31, 2013.

Amendment to ADA regulations
This morning, the DOJ formally published an “Amendment of the Americans with Disabilities Act Title II and III Regulations to Extend Compliance Date for Certain Requirements Related to Existing Pools and Spas Provided by State and Local Governments and by Public Accommodations” (ADAAG Sections 242 and 1009 Standards for Accessible Design).

The new pool lift Compliance Date is January 31, 2013. The Amendment acknowledges that the DOJ’s January 31, 2012 technical advisory caused “significant concerns and misunderstandings among a substantial number of pool owners and operators” with respect to the new technical requirements for pool lifts.

Background to the extension
The DOJ recently received and carefully considered comments from pool owners, operators and various industry groups and clarified a number of popular misconceptions about the new requirements. At the end of the day, the DOJ seems to have heard the public outcry, in part.

In its Technical Advisory Document of January 31, 2012, the DOJ sent tsunami-sized waves through the hospitality and pool and spa industries when it announced, for the first time, its interpretation that pool and spa lifts are required to be “fixed” (as opposed to portable) next to the pool or spa at all times the facility is open, unless it is not “readily achievable,” and they cannot be shared between water elements.

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On May 2, 2012, Charles Schwab & Co. announced an initiative to make its website more accessible for all customers, particularly those who are blind or have sight disabilities. This high-profile development was part of the settlement of a claim by Kit Lau, a Charles Schwab customer for more than 25 years.

While many have focused on the Americans with Disabilities Act’s (ADA’s) ever-changing pool lift requirements, we continue to see the DOJ and private advocacy groups driving to enforce the original regulations promulgated 20 years ago under the ADA. As of December 31, 2011, more than 13,130 lawsuits had been filed under the ADA, and the trend continues to grow.

Charles Schwab settlement is one of 15 prominent web site settlements

Charles Schwab, one of the nation’s leading securities broker-dealers, and a disability rights advocacy attorney, announced last week that they settled a year-long claim by a blind customer that its website was inaccessible to blind, low vision and cognitively challenged customers. The structured negotiations concluded this dispute short of trial.

With this settlement, Charles Schwab joins a list of 15 prominent companies which have settled website accessibility complaints. Charles Schwab agreed that it will make its website more accessible and inclusive for all customers, and agreed to implement the Web Content Accessibility Guidelines (WCAG) Version 2.0 Level AA which will make its website navigable by disabled customers.

An informal complaint backed by the threat of litigation and administrative investigations was lodged with Charles Schwab by the lawyer for a blind day trader. The claimant was a long-time Schwab customer and herself a computer programmer. One morning, she found that she could no longer navigate the Schwab website using JAWS software and was prevented from making trades on-line. The JAWs software reads aloud the text of the page so blind and low vision customers can access the website.

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One year delay for ADA pool lift requirement

On March 26, 2012, the AH&LA announced support for legislation introduced to force a 1 year delay in enforcing the ADA pool lift requirement. The bill was introduced by Congressman Mick Mulvaney (R-SC) and has 26 original co-sponsors.

Authorize portable pool lifts, sharing lifts and protection for hoteliers during delay

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ADA Defense Lawyer: What does the ADA pool lift compliance extension of May 15 mean for you?

First, let’s be clear that all compliance dates have NOT been extended!

Extended deadline for pool lifts is May 15

Responding to concerns expressed by the hotel, pool and spa manufacturing industries, and those of a number of U.S. Congressmen, on March 15, the White House plunged into the swimming pool access controversy by issuing a 60-day an extension to implement the 2010 ADA Standards for pool lifts. As a result of this action, the new deadline for installing pool lifts is May 21, 2012, but that too may change.

March 15 deadline remains for all other provisions of new ADA Standards

The March 15, 2012 compliance date remains in effect for all other provisions of the 2010 Standards. The Department of Justice will soon publish a Notice of Proposed Rulemaking giving the public 15 days to express their views. We expect the hotel and pool and spa industries will take a much more active role in the public comment process than they did when the 2010 Standards were initially open for comment.

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As you should know by now if you are following developments on the Americans with Disabilities Act (or ADA), the most sweeping changes to the ADA in 20 years become effective on March 15, 2012.

It seems that almost every day there is some new development or interpretation of the new rules. For an up-to-date summary of some key provisions, please see articles listed at the end of this posting.

The hotel industry has been visiting the DOJ’s Civil Rights Division to get clarification on the recent DOJ guidance on “fixed” pool lifts.

Congressmen intervene with DOJ on pool lift issues
Last week, two prominent Congressmen, Mike Mulvaney and Todd Rokita, jumped into the fray with a letter to DOJ (see below) acknowledging its important efforts to provide swimming pool access to the disabled community. Here are a few highlights from the letter and the full text is below.
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SAN FRANCISCO-The Department of Justice gave March 15 as the deadline for all hotel properties to install pool lifts for disabled guests who could not otherwise use the facilities independently. According to the DOJ, these lifts must be fixed, well-maintained, and exclusive to each pool.

Recently, Martin H. Orlilck, an Americans with Disabilities defense lawyer, sat down with GlobeSt.com’s Miriam Lamey to discuss the impending deadline and how the hotel industry has and will respond to the requirements.

A question and answer session follows:

GlobeSt.com: What do you think the new regulations mean for the industry?
Orlick:This requirement for accessible pool lifts is not new. The actual requirement has been around for the past 15 years. There have been advocacy groups and therapeutic practitioners who have been advocating for pool lifts for that long. And there were a lot of things that take a long time: It takes a while for the technology to catch up with the ideology. And so therapists and advocacy groups and individuals were pressing for pool lifts and other types of devices including health and fitness equipment while the technology didn’t exist. And there weren’t the right manufacturers; there were a lot of questions about what the standards should be for this type of device. In 2008,the Department of Justice made it clear that they were going to be developing some guidelines for accessible pools. But up until 2010 when these standards were approved, the only requirement was to [be able to] get someone with a disability to the pool.

GlobeSt.com: So what hospitality operators supposed to do after that?
Orlick: Well, that’s the point. But that was the extent of the law: you just needed an accessible path of travel to the pool. Not to get so much into the pool. And for the past number of years, disabled advocacy groups have been complaining about it. Some problems included that there was no way for people to get in or out of the pool, independently or with other assistance. So, an individual [with a disability] would be now paying for the pool that’s built into his or her rates, and they don’t get to use the pool facilities as anyone else would.

GlobeSt.com: What was the response?
Orlick: Well, the access board and Department of Justice worked on developing technical standards for a pool lift. And they’ve done that over the last couple of years. Now, the 2010 standards include scoping provisions – in other words, how many pool lifts does a hotel have to have, where they need to be and the technical requirements. Now, scoping requirements and technical requirements are part of 2010 standards. [The latter] define what the lift is supposed to look like, how it is supposed to operate and so on. The seat is supposed to be a certain size, the lift is supposed to drop 18 inches into the water, things like that.

GlobeSt.com: What does that mean to the industry?
Orlick: The industry is confused – it’s genuinely confused. It’s confused and I’m getting phone calls every day – every couple of hours! – from operators of hotels who are saying “what do I do?” And their concerns are in part financial, but they are not financially-driven. I don’t believe that. They are more driven to asking, “what does the Department of Justice actually require?” And “what does it mean as far as the operations of my property?” Continue ›