Florida Lawyer News Services | Robbins Equitas

Americans with Disabilities Act Update

Disability Access Lawsuits on the Rise

By Vincent Lynch, Managing Partner of Pinkard Lynch, P.A.

The Americans with Disabilities Act (ADA) was established by the United States Congress in 1990 to protect disabled Americans from discrimination in employment, government services and places of public accommodation, such as privately owned or operated hotels, restaurants, and shopping centers. The ADA is a Pandora’s Box of litigation for small, medium and large businesses.

Title III of the ADA requires businesses to be accessible to the disabled that utilize their goods and services. The ADA requires removal of structural barriers in businesses open to the public where removal is “readily achievable.” 42 U.S.C. §12182(b)(2)(A)(iv). Where removal of a barrier is not readily achievable, businesses may provide access “through alternative methods if such methods are readily achievable.” 42 U.S.C. §12182(b)(2)(A)(v). Aggrieved individuals may sue to enforce the ADA and, if successful, obtain injunctive relief and an award of attorney’s fees. 42 U.S.C. §§12188(a)(1); 2000a-3(a). Monetary damages are not recoverable. Several disabled persons, disability organizations and their attorneys are bringing high volume ADA litigation that is hurting business in an already difficult economic climate.

High Volume ADA Plaintiffs’ and their Lawyers

Some of these persons and organizations include Stephen A. Karakis, Nolan R. Campbell, Access for the Disabled Inc., and Access 4 All Inc. Over the last few years, hundreds of lawsuits were filed against a variety of businesses in an overzealous attempt to force compliance with the ADA. One of the most prolific ADA Access litigants is A. Joseph Raetano. Mr. Raetano, through his attorney, Todd Shulby, filed approximately 100 ADA cases in the Tampa Metropolitan Area in 2009 claiming discrimination by a laundry list of private businesses. Mr. Raetano sued 27 commercial property owners in Clearwater, Florida and 10 on Main Street in Dunedin, Florida. His lawyer, Todd Shulby, filed approximately 800 ADA lawsuits since 1995. Where does it end?

Enter Scott N. Johnson, Esq. a disabled attorney near Sacramento California who jumped on the ADA bandwagon and added a new twist. Mr. Johnson filed over a dozen lawsuits in November 2009 alone in the US District Court for the Eastern District California. Mr. Johnson filed over 100 lawsuits so far, represents himself and Disabled Access Prevents Injury, Inc., and seeks not only injunctive relief (such as repairs) but monetary damages under the California Civil Code. California courts are being flooded with new disability access cases in part because of even broader state protections than those available under the ADA and the right to seek damages.

Some backlash has taken place from Judges that handle ADA cases and several bills were presented before Congress to reform the ADA, but none have passed and it remains extremely easy for a business to be sued for a failure to comply with the ADA. Orlando Federal Judge Gregory Presnell indicated that “[t]he current ADA lawsuit binge is essentially driven by economics-that is, the economics of attorney’s fees.”

A Federal Court in California described their tactics:

“The scheme is simple: an unscrupulous law firm sends a disabled individual to as many businesses as possible, in order to have him aggressively seek out any and all violations of the ADA. Then, rather than simply informing a business of the violation and attempting to remedy the matter through ‘conciliation and voluntary compliance,’ a lawsuit is filed, requesting damage awards that would put many of the targeted establishments out of business.

Defending a Disability Access Lawsuit

Structures built before 1992 constitute “existing facilities” under the ADA. A business run in an “existing facility” need only remove actual structural barriers to access that are “readily achievable” and do not require “much difficulty or expense.” This is a fairly lenient standard and takes into consideration the cost of making repairs to remove the alleged barriers to access in a lawsuit. New facilities or buildings constructed after 1993 must be “readily accessible” and “usable” by individuals with disabilities. A comprehensive list of specific regulations govern new construction including specific architectural and building specifications such as counter heights and the size of a bathroom stall.

In either case, a company can defend the case by proving the person did not attempt to actually access the premises or has no real intention of returning which may be the case with a high volume Plaintiff. The private company can also assert that the alleged barrier does not, in fact, prevent the person from gaining access to the goods and services of the business. Also, the company can argue that the modification sought would create an undue burden or expense.

Our Experience

Our firm has successfully represented dozens of small and large companies throughout the US in disability access and employment litigation and prevention. Our clients include health care professionals, restaurants, golf courses, recreational businesses, shopping centers, retail stores and hotels.