• Wave of ADA Lawsuits Could Be Aimed At Shopping Centers
  • March 19, 2004 | Author: Jeffrey D. Stevens
  • Law Firm: Parr Brown Gee & Loveless, A Professional Corporation - Salt Lake City Office
  • Overall, it seems shopping malls have done a good job of compliance with the American Disabilities Act (ADA), both in modifying older developments and in new construction. Or, have mall owners and tenants been lulled into a false sense of security regarding compliance? In the nearly 13 years since the ADA was enacted, relatively few lawsuits have been filed against public facilities. While most shopping malls and centers think they are in compliance, many are now being surprised by lawsuits that seemingly come out of the blue. Not even new construction projects are exempt from potential litigation. It is possible that a wave of ADA related lawsuits against malls, shopping centers and retail establishments has likely just begun. The level of minute detail under the ADA is challenging for developers of multi-faceted projects to control and track. Consequently, the ability to allege non-compliance is generally easy and, as the law is written, the incentive is to bring a lawsuit against a business rather than first discuss the problems. Add this to a complainant's ability to recoup attorney fees and court costs, if successful, and it becomes an enticing mix too powerful to pass up. The first round of ADA litigation focused on Title I, which protects the rights of individuals with disabilities in the workplace. Title III, which regulates public accommodations such as shopping centers, retail stores, restaurants and theatres, has become the newest focus over the past couple years. The increase in ADA related lawsuits is also fueled by an interest to expand the legal remedies to include monetary awards. Recent suits are claiming that by cutting corners during construction or modification, public facilities are profiting at the expense of the disabled community. Currently the remedies available under Title III are an injunction mandating correction of an architectural barrier and the plaintiff's attorney fees. Complainants, however, are beginning to include a request for an accounting and an equitable disgorgement of ill gained profits. This is a new and novel theory being used in an attempt to put more bite into the Title III statute. In essence, complainants are arguing that public accommodations built after 1991 that do not comply with Title III of the ADA are "illegitimate" operations and, therefore, the business does not deserve any profit earned because it was accrued while operating outside the law. If a court agrees with this argument, it would be within its discretion to determine what to do with the profits. For now, the likelihood of getting this additional relief is low, but there is a valid theory supporting it, which requires substantial legal analysis to rebut. The goal of public interest lawyers in ADA cases is to get new case law on the books that recognize monetary damages, and the only way to do this is on appeal. Therefore, defeating these claims at the trial court level means shopping center operators will be subjected to the additional costs and fees of an appeal. Needless to say, if one of these cases is successful, it will bring a significant increase in the risks and costs of Title III litigation for shopping center management. Enforcement groups concentrating on Title III issues have formed all over the country with the express purpose of changing public accessibility one lawsuit at a time. Florida, Hawaii and California have been particularly susceptible to these cases. The stated intent of the lawsuits as well as the law is, of course, honorable. However, many accessibility concerns can be resolved through cooperative discussion without litigation. Thus, the immediate resort to litigation and the new focus on monetary damages casts an air of suspicion on the true intent of some ADA claims and heightens the threat for businesses. In response to this rise in litigation there has been increasing interest in introducing an "ADA Notification Act" to amend Title III and require 90 days notice for alleged violations to be corrected before civil action can commence. There are lobbying efforts underway specifically related to how the current law is applied to shopping center operators as well as to encourage the notification amendment. Opponents of the notification act site the 18-month grace period public facilities were given to fully comply with ADA. They argue that the waiting period has been closer to 12 years since organizations supporting the rights of people with disabilities have only recently taken serious action for Title III violations. They maintain that when voluntary compliance in all public facilities is achieved, the lawsuits will stop. There are at least two compelling considerations for an earnest effort at voluntary compliance. First, the legal fees involved in an ADA court case¿whether it is won or lost¿could exceed the cost to correct the alleged violation. It is more than worthwhile for mall operators to diligently assess whether all facets of the development meet ADA requirements. Hiring a reasonably priced, well- qualified ADA expert could save operators substantial time and money defending lawsuits. Second, landlords and tenants are both liable under the ADA. As written, the law makes no distinction between landlord and tenant to remedy architectural barriers, and this is one of the most problematic areas of Title III for the retail development industry. Under Title III landlords can be held responsible to correct and fix features and conditions constructed and installed by tenants, and tenants can be held responsible for features constructed and maintained by the landlord. Lease provisions allocating responsibility for compliance with the ADA and responsibility for different areas of a facility are ineffective defenses in a Title III suit. Most courts that have addressed this situation have concluded that the ADA does not require a plaintiff to determine whether the landlord or the tenant is ultimately responsible for correcting an architectural barrier. Instead, the ADA authorizes courts to order relief against either party, leaving the landlord and tenant to sort out the details between themselves in a separate proceeding. The unfortunate result is that landlords and tenants may end up dragging each other into these suits, or, worse yet, a landlord or tenant may be ordered to remove or alter property that they do not own or control. In any case, the current state of Title III law is interpreted to address the plaintiff's concerns, but, as such, it adversely impacts the business relations between the landlord and tenant and leads to a cumbersome mechanism to achieve compliance. Landlords should watch for and educate tenants on violations often cited in ADA cases such as aisle width, counter height, restroom requirements, seating, blocked access to inventory or cash registers and vertical access to all levels of a retail or entertainment establishment. At the very least, shopping center operators and management should regularly inspect areas that are sensitive to ADA cases. These include: · Adequate handicap parking, van accessible spaces and appropriate signage. · Appropriate vertical access via ramps, elevators or escalators to all levels of the mall. · An accessible travel route from the parking area to the mall entrance. · Accessible entry including appropriate door widths, handles and controls and thresholds. · Indoor flooring and exterior pavement that allows easy travel for mobility impaired shoppers (wheelchairs and cane assisted). · Signage mounted at the correct heights that meet lettering specifications (raised or Braille, contrast and legibility). · Restrooms with easy to operate doors, adequate maneuvering space for wheelchairs in the common area, properly mounted sinks, mirrors, towel racks, toilet paper holders and soap dispensers, and a stall adequate for wheelchair access. · Properly mounted drinking fountains. · Properly mounted public telephones and, if required, a TT or TDD telephone that is identified with signage. · Appropriate height for public seating. While the merits of most ADA claims are often not threatening on the surface, they do pose the threat of substantial and protracted legal proceedings with accompanying fees. Even if the plaintiffs are unsuccessful and not awarded attorney fees, there are no provisions for the defendant to collect the fees and costs of defending and prevailing on the suit from the plaintiff. As soon as the plaintiff's lawyer starts working, the clock starts ticking on fees for which a defendant may become liable. These lawsuits are no-win situations for business and the price for non-compliance is too high. _________________________________ Jeffrey Stevens is a member of the Parr Waddoups Brown Gee & Loveless (Salt Lake City, UT) litigation group. He focuses his practice on commercial litigation, design and construction litigation, and insurance law disputes. Mr. Stevens has represented a number of clients in matters regarding accessibility and accommodation and has extensive experience in the construction industry. He can be reached at (801) 532-7840 or [email protected] The information provided is intended solely as informational guidance.