We’ve heard of drive-by shootings. But very few business heard of ADA drive-by lawsuits. The same plaintiff, known as “tester”, “drive by” a business property to collect evidence before filing a lawsuit. ADA Drive-by lawsuits have become so problematic that commercial property owners, landlords, tenants, franchisees and franchisors are looking to Nakase|Wade ADA lawyers to help them navigate the ADA terrain.
Definition. The Americans with Disabilities Act of 1990 (“ADA”) is a federal law with the stated purpose of providing “clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities.” (42 U.S.C. § 12101(b)(2).)
ELEMENTS. To establish a violation, a plaintiff must show:
- A covered disability;
- The defendant is a private entity that owns, leases, or operates a place of public accommodation; and
- The plaintiff was denied public accommodations by the defendant because of [the] disability. (Molski v. M.J. Cable, Inc. (9th Cir. 2007) 481 F.3d 724, 730.)
Title III of the ADA prohibits discrimination on the basis of disability in the activities of places of public accommodations (businesses that are generally open to the public and that fall into one of 12 categories listed in the ADA, such as restaurants, movie theaters, schools, day care facilities, recreation facilities, and doctors’ offices) and requires newly constructed or altered places of public accommodation—as well as commercial facilities (privately owned, nonresidential facilities such as factories, warehouses, or office buildings)—to comply with the ADA Standards. (42 U.S.C. § 12188; Pub.L. 101-336, Title III, § 302, July 26, 1990, 104 Stat. 355.)
Nakase|Wade attorneys has represented hotels, resorts, restaurants, timeshares, bed and breakfasts, spas, sports facilities, wineries, theaters and other commercial real estate, such as apartment communities, shopping centers, retail stores and banks. Our ADA attorneys has represented clients in Los Angeles County, Orange County, San Diego County, San Bernardino County, and Riverside County.
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There are three elements to establishing standing to pursue equitable relief for civil rights plaintiffs in federal court, including:
- Plaintiff have suffered or will suffer an actual injury;
- The injury suffered stems directly from the actions of defendant; and
- A favorable decision is the only way to redress this civil rights violation. (Lujan v. Defenders of Wildlife (1992) 504 U.S. 555, 560; 42 U.S.C.A. § 12182.)
Furthermore, for purposes of the ADA, a plaintiff acquires standing and suffers an injury as soon as he or she actually becomes aware of the existence of discriminatory conditions at a public accommodation and is thereby deterred from visiting or patronizing that accommodation; so long as the discriminatory conditions continue, and so long as a plaintiff is aware of them and remains deterred, the injury under the ADA continues. (Reycraft v. Lee (2009) 177 Cal.App.4th 1211.)
Element 1: Covered Disability
The ADA defines a disability as a “physical or mental impairment that substantially limits one or more of the major life activities of such an individual.” (42 U.S.C. § 12101(2).) The U.S. Justice Department defines an “impairment” as a condition affecting one or more of the bodies’ systems, including the musculoskeletal and neurological systems, and defines “major life activities” to include “functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” (28 C.F.R. 36.104).
Title III protects three categories of individuals with disabilities, including: (1) Individuals who have a physical or mental impairment that substantially limits one or more major life activities; (2) Individuals who have a record of a physical or mental impairment that substantially limited one or more of the individual’s major life activities; and (3) Individuals who are regarded as having such an impairment, whether they have the impairment or not.
Element 2: Defendant Owns/Leases/Operates a Place of Public Accommodation
The ADA identifies 12 categories of facilities that are considered places of public accommodation for purposes of a Title III action. (42 U.S.C. § 12181.)
Generally, every public place that is open to the general public is included, such as “a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment.” (42 U.S.C. § 12181(7)(E).)
“[T]he legislative history [behind Title III] indicates [that the categories of public accommodations] ‘should be construed liberally’ to afford people with disabilities ‘equal access’ to the wide variety of establishments available to the nondisabled [sic].” (PGA Tour, Inc. v. Martin (2001) 532 U.S. 661, 676-77.) Although the definition of a public accommodation is quite broad, it is also exclusive, and businesses and business operations that do not fall into one of the above 12 categories are not covered by Title III of the ADA.
Two categories of entities are exempt: “private clubs or establishments exempted from coverage under Title II of the Civil Rights Act of 1964 (42 U.S.C. 2000-a(e).)”; and “religious organizations or entities controlled by religious organizations, including places of worship.” (42 U.S.C. § 12187.)
Element 3: Plaintiff Denied Public Accommodation Due to Disability
Whether a plaintiff was denied access to a public accommodation on the basis of disability is met if there was a violation of applicable accessibility standards. (Chapman v. Pier I Imports (U.S.), Inc. (2011) 631 F.3d 939, 945 (9th Cir.); Donald v. Cafe Royale (1990) 218 Cal.App.3d 168, 183.)
A disabled person who encounters a “barrier,” i.e., an architectural feature that fails to comply with applicable standards that are related to his or her disability, suffers unlawful discrimination as defined by the ADA. (42 U.S.C. § 12182(b)(1)(A)(i); Chapman, supra, 631 F.3d at p. 947, fn. 5.) There is no intent requirement. Unlike other civil rights violations, liability does not depend on proof of intentional discrimination. (Jankey v. Lee (2012) 55 Cal.4th 1038, 1044.)
Existing Facilities Before Jan. 26, 1993
Places of public accommodation that are “existing facilities” are required to remove architectural barriers that deny access to persons with disabilities, “where such removal is readily achievable.” (42 U.S.C. § 12182(b)(2)(A)(iv).)
Buildings and Facilities “Constructed” or “Altered” After Jan. 26, 1993
For buildings and facilities that were constructed, or altered, after January 26, 1993, “discrimination” includes the failure to design and construct or to make alterations to the facility that render it “readily accessible to and usable by individuals with disabilities.” (42 U.S.C. § 12183(a)(1).) Whether an architectural element at a facility denies full and equal access to persons with disabilities is determined based on the ADA Accessibility Guidelines. (Chapman v. Pier I Imports (U.S.), Inc., 631 F.3d 939, 945 (9th Cir.2011).)
FILING AN ADA TITLE III CLAIM
Under the Civil Rights Act of 1964, a disabled person aggrieved by a violation of the ADA, may bring an action for injunctive relief, and need notify any state or local agency as a prerequisite to filing a private lawsuit under these provisions. (Botosan v. Paul McNally Realty (2000) 216 F.3d 827 (9th Cir.).)
The ADA establishes two avenues for enforcement of the requirements of title III: (1) Private suits by individuals who are being subjected to discrimination or who have reasonable grounds for believing that they are about to be subjected to discrimination; and (2) Suits by the Department of Justice, whenever it has reasonable cause to believe that there is a pattern or practice of discrimination, or discrimination that raises an issue of general public importance. The Department will investigate complaints and conduct compliance reviews of covered entities. (28 C.F.R. 36.501-36.508.)
Statute of Limitations
Because Title III is silent on the statute of limitations period for private rights of action, federal courts in an ADA suit will apply the most analogous state statute of limitations. (Wilson v. Garcia (1985) 471 U.S. 261, 266 [“When Congress has not established a time limitation for a federal cause of action, the settled practice has been to adopt a local time limitation as federal law if it is not inconsistent with federal law or policy to do so.”].)
Only Injunctive Relief Available under Federal Law
Remedies available in a private suit may include a permanent or temporary injunction, restraining order, or other order, but not compensatory or punitive money damages or civil penalties. In the case of violations of the requirements for readily achievable barrier removal or for accessible new construction and alterations, remedies to correct a violation may, as appropriate, include an order to alter the facilities that do not meet the requirements of the Act to make them readily accessible to and usable by individuals with disabilities. Also, the remedies may include requiring the provision of an auxiliary aid or service, modification of a policy, or provision of alternative methods of barrier removal.
Thus, although the Attorney General of the United States may seek damages on the aggrieved person’s behalf, in a private action for violation of title III of the ADA, no damages—only injunctive relief—are available. (Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 670.)
Damages Available under California Law
A disabled person may be entitled to $4,000 for every visit he or she makes to a place of public accommodation where he or she encounters a barrier to access or is “deterred from accessing” an accommodation because of an access barrier. (Cal. Civ. Code, §§ 52(a), 55.56(b).)
The prevailing party is entitled to recover reasonable attorney’s fees. (42 U.S.C. § 12205.) In some cases, the courts have held that a prevailing defendant will only be allowed attorney’s fees if the defendant proves that the plaintiff’s suit was “frivolous, unreasonable, or without foundation.” (Summers v. A. Teichert & Son (1997) 127 F.3d 1150 (9th Cir.).
Generally, a plaintiff with disabilities will have no special problems in establishing the first two elements of standing for a Title III claim. It is the third element—plausible intent or desire to return to the place where they previously encountered an ADA violation, or failure to show that there is a likelihood of discrimination should they return to that place—which some courts have applied to bar plaintiffs from seeking injunctive relief for past violations of Title III of the ADA. (See Aikens v. St. Helena Hospital (1994) 843 F. Supp. 1329 (N.D. Cal.) [holding plaintiff did not have standing to pursue her Title III claim against a hospital where her husband had died and there was no likelihood of the harm being repeated.].)
Accommodation poses an undue hardship: “Significant difficulty or expense…in light of the nature and net cost of the accommodation; the overall financial resources of the covered entity; the impact … upon the operation of the facility; the ability of other employees to perform their duties; and the impact on the facility’s ability to conduct business.” Includes accommodations that are: “unduly extensive, substantial, or disruptive, or… that would fundamentally alter the nature or operation of the business…” (42 U.S.C. § § 12111; 29 C.F.R. §1630.2(p) Appendix; EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship.)
In determining whether an individual would pose a direct threat, the factors to be considered include: (1) The duration of the risk; (2) The nature and severity of the potential harm; (3) The likelihood that the potential harm will occur; and (4) The imminence of the potential harm. (29 C.F.R. §1630.2(r); see also School Board of Nassau County v. Arline (1987) 480 U.S. 273.)
Defenses Where There is an “Existing” Facility
Includes defenses where removal of the alleged barriers would fundamentally alter the nature of defendant’s public accommodation (42 U.S.C. § 12182(b)(2)(ii); where removal of the alleged barriers is not readily achievable; and where the requested modifications would impose an undue burden on the defendant.
Defenses Where There is a “New” or “Altered” Facility
Includes defenses where compliance would be structurally impracticable (28 CFR §36.401); where a plaintiff’s claim is barred by the statute of limitations; and where the renovations did not constitute alterations.