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By Jim Butler and the Global Hospitality Group®

24 February 2016

As the number of ADA lawsuits continues to explode, both Federal and California lawmakers are considering steps to limit abusive ADA lawsuits.

Here is an update on these positive developments from my partner, Marty Orlick, who heads JMBM’s ADA Compliance & Defense Group that has defended more than 600 ADA cases and DOJ investigations.

Amid Growing Concerns Over the Proliferation of ADA Lawsuits, Congress and the California Legislature Address Measures to Curb ADA Abuse
by
Martin H. Orlick, Chair, JMBM’s ADA Compliance and Defense Group

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.

H.R. 3765: ADA Education and Reform Act of 2015

The bill which now has 15 cosponsors (14 Republicans, 1 Democrat) would amend the Americans with Disabilities Act of 1990 to promote compliance through education, clarify the requirements for pre-litigation demand letters and provide a notice and cure period before private ADA litigation can be filed. The bill would require the Department of Justice’s Civil Rights Division to create and implement a program to educate state and local governments and private business owners and operators on effective barrier removal strategies to enhance accessibility on a national basis.

The bill would prohibit persons from initiating litigation without sending pre-suit notification alleging the specific ADA violations they encountered and how these barriers prevented the claimant from full and equal access to the property or business (and could impose criminal fines on those who initiate litigation without the pre-suit notification). The bill prohibits filing civil actions based on the failure to remove architectural barriers at existing public accommodations unless (1) the claimant has provided the owner or operator of a business with a written notice specific enough to identify the alleged barriers and (2) the owner or operator fails to provide a written description outlining the improvements that will be made to the property of if they fail to make substantial progress to remove the barriers after a reasonable time. Similar bills have been proposed over the years, but this time, the bill is moving forward with broader support from Republicans and Democrats.

To see the current status of H.R. 3765, including full text of the bill, click here

California Ballot Measure to Curb ADA Lawsuits

California lawmakers are listening to business owners and operators who are calling for ADA reform. For years, business owners and industry groups have been requesting that a pre-filing notice and cure provision be added to the State’s accessibility laws. Although some legislative efforts have been partially successful, this time California voters may get to decide whether state law will be amended to require a pre-litigation notice and cure be given, specifying the alleged architectural barriers that prevented disabled persons from enjoying a businesses’ goods and services and providing a reasonable opportunity to remove the barriers.

A ballot measure addressing these matters has been cleared, and the proponents are busy collecting the needed 585,000 signatures of registered voters. If passed, the ballot measure would require that people with disabilities give property owners or businesses 90 days notice before they could file ADA litigation. It would also bar lawsuits from proceeding if the alleged barriers are fixed within that 90 day window. Building permits designed to enhance accessibility would be given processing priority. Many ADA lawsuits involve common architectural barriers such as non-compliant parking, signage, door pressure, fixture heights, pool lifts and other accessible elements which can be addressed within 90 days.

However, for more complex architectural barriers, such as the lack of the requisite number of accessible guestrooms, non-compliant toilet rooms, the lack of lower accessible bank teller or concession counters require engineering, architectural drawings, construction contracts, permitting and possibly financing, a 90 day time frame is insufficient.

Our ADA Compliance and Defense Group members are carefully monitoring these legislation and ballot initiatives and will be issuing further blogs as developments unfold.

Other ADA defense and compliance resources

You can access the full library of ADA materials on Hotel Law Blog by going to the home page, selecting the tab at the top that says “HOTEL LAW TOPICS”, and then clicking on “ADA Defense & Compliance” in the drop down menu . . . or by clicking here.

Below is a partial listing of articles by JMBM’s ADA Defense Lawyer team:

The ADA Compliance and Defense Guide — Free Download

ADA Defense Lawyer: New ADA standards for website accessibility

FAQs on “service animal” requirements of the ADA. What every hotelier needs to know. Why Uber was sued over service animals.

Starwood Hotels and The Phoenician get an expensive (and unnecessary) lesson in ADA compliance. 

DOJ sues 3 of NYC’s top Zagat-rated restaurants for ADA violations

Charles Schwab settles claim over website accessibility

A blast against frivolous, serial ADA lawsuits in striking the right balance

New ADA compliance standards for golf courses. What do they mean to you?

How to handle an ADA lawsuit . . . and How not to do it

How a recent ADA case affects all hotels but particularly conference centers and meeting hotels

ADA Defense Lawyer Alert: Hilton’s ADA Settlement with the Department of Justice: Precedent-setting agreement delivers more than removing architectural barriers

When disabled hotel guests’ needs go beyond the norm for typical guests, what do hotel owners and managers have to do?

ADA Sweeps by U.S. Department of Justice — Coming to a theater district or Hotel near you soon? How to get ready before it’s too late.

Defending ADA lawsuits. How your hotel website can make you a target for ADA lawsuits

If you would like to discuss any of the ADA issues, please contact us.

This is Jim Butler, author of www.HotelLawBlog.com and hotel lawyer, signing off. Who’s your hotel lawyer?

About Jim Butler

Jim Butler is a founding partner of JMBM, and the founder and chairman of JMBM’s Global Hospitality Group® and Chinese Investment Group™. He is recognized as one of the top hotel lawyers in the world and has authored or co-authored The HMA & Franchise Agreement Handbook, How to Buy a Hotel Handbook, The ADA Compliance and Defense Guide, and The Lenders Handbook. Jim has led the Global Hospitality Group® in more than $71 billion of hotel transactional experience, involving more than 3,800 hotel properties located around the globe. Jim’s team has also closed more than $1 billion of EB-5 financings for developer clients over the past two years. 310.201-3526 or jbutler@jmbm.com

Contact: Jim Butler

jbutler@jmbm.com / (310) 201-3526

About Marty Orlick

Martin H. Orlick is one of the top ADA defense lawyers in the country. He has helped hotel, restaurant, retail and other commercial property owners defend more than 600 ADA cases. In addition to defending lawsuits and governmental investigations, Marty’s team of ADA specialists focuses on enterprise-wide ADA compliance and litigation prevention, including facilities, website and operational compliance. He is also is a senior member of the law firm’s Global Hospitality Group®, a partner in the real estate department, and a member of the American College of Real Estate Lawyers (ACREL). For more information about ADA compliance and defense, contact Marty Orlick at 415.984.9667 or morlick@jmbm.com.

Contact: Marty Orlick

morlick@jmbm.com / (415) 984-9667

About JMBM

Our Perspective. We represent hotel owners, developers and investors. We have helped our clients find business and legal solutions for more than $71 billion of hotel transactions, involving more than 3,800 properties all over the world. We bring this experience to any hotel project — big or small. Let’s explore how it might work for you.

For more information, please contact Jim Butler at jbutler@jmbm.com or +1 (310) 201-3526.

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