Understanding the ADA

The Blog of William D. Goren, J.D. LL.M.

pre-suit notice

H.R. 620: The Defense Lawyers Full Employment Act

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I have a few cases in my pipeline, but there was never any question as to what this week’s blog entry was going to be on. Considering that the House of Representatives passed HR 620 and the Internet has lit up with it, blogging on HR 620 was the only choice for this week. As usual, the blog entry is divided into categories and they are: what HR 620 provides; how a defense lawyer is going to go about his or her business assuming it passes; and takeaways. The reader is free to look at any or all of the sections.

I

What HR 620 Provides

  1. HR 620, “the ADA Education and Reform Act,” amends the ADA with respect to suing for architectural barriers in the following ways:

“(B) BARRIERS TO ACCESS TO EXISTING PUBLIC ACCOMMODATIONS.—A civil action under section 302 or 303 based on the failure to remove an architectural barrier to access into an existing public accommodation may not be commenced by a person aggrieved by such failure unless—

“(i) that person has provided to the owner or operator of the accommodation a written notice specific enough to allow such owner or operator to identify the barrier; and

“(ii) (I) during the period beginning on the date the notice is received and ending 60 days after that date, the owner or operator fails to provide to that person a written description outlining improvements that will be made to remove the barrier; or

“(II) if the owner or operator provides the written description under subclause (I), the owner or operator fails to remove the barrier or, in the case of a barrier, the removal of which requires additional time as a result of circumstances beyond the control of the owner or operator, fails to make substantial progress in removing the barrier during the period beginning on the date the description is provided and ending 60 days after that date.

“(C) SPECIFICATION OF DETAILS OF ALLEGED VIOLATION.—The written notice required under subparagraph (B) must also specify in detail the circumstances under which an individual was actually denied access to a public accommodation, including the address of property, whether a request for assistance in removing an architectural barrier to access was made, and whether the barrier to access was a permanent or temporary barrier.”

  1. The “education,” piece of the act is that the act requires the Disability Rights Section of the Department of Justice to develop, in consultation with property owners and representative the disability rights community, a program to educate on efficient strategies for promoting access to public accommodations for persons with disabilities. The program may include training for professionals such as certified access specialists, which exists in California and Texas that I know of, to help provide guidance of remediation for potential violations of the ADA.

 

II

How a Defense Lawyer Is Going to Attack This

I have worked as a legal consultant or as co-counsel defending title III lawsuits. If this bill becomes law without being amended, here is how you can expect a defense attorney to attack an architectural barrier lawsuit:

  1. Respond just about every time that the notice wasn’t sufficient. Then, make the argument that the sixty day period doesn’t start until the notice is sufficient.
  2. While engaged in ¶ 1, promptly hire an accessibility consultant (costs for that are highly variable, probably five grand is useful at a minimum, depending upon the person hired and scope of the work).
  3. Once the accessibility report comes in, make the per se readily achievable changes and prioritize the rest, thereby mooting the case. The defense may even want to consider holding off on carrying out the non-readily achievable changes (priority list), until being called on it by a plaintiff since it is almost certain that the readily achievable list in the regulations will get the most attention from a plaintiff. It is entirely possible that the priority list will never be subject of a suit.
  4. Argue that the execution of ¶ ¶ II 1-3 above is substantial progress.
  5. If a plaintiff persists after all this is done, move for attorney fees.

III

Thoughts and Takeaways:

  1. Plaintiff with disabilities and plaintiff lawyers are the big losers here. Also, a big loser are businesses because this gets businesses to think in the short term and to limit the customers they may serve. Businesses also lose because defending these suits is going to get more expensive than it currently is. The big winners are defense lawyers because it enables defense lawyers to drag out the process, and it also enables defense lawyers to get very persnickety about whether the notice is sufficient before their client has to do anything. See also ¶ 6 below.
  2. You want to review this blog entry:
  3. This legislation applies strictly to the removal of architectural barriers under title III of the ADA. Therefore, it doesn’t affect what is going on with web accessibility litigation at all nor does it affect architectural barriers litigation under title II of the ADA.
  4. Sen. Duckworth from Illinois and Sen. Murray from Washington have both come out with guns blazing with respect to stopping this in the Senate. That said, this isn’t the kind of legislation where it can necessarily be assumed that all Democrats are going to be against or for that matter all Republicans are going to support. It is going to come down to whether the Republicans combined with some Democrats can get the 60 votes for cloture.
  5. By putting drop dead deadlines into the legislation, this legislation actually cuts off some flexibility that the defense currently has. Right now, the defense wants to immediately make the per se readily achievable changes, but has flexibility as to when the rest of the changes can be made. This legislation takes that away.
  6. Look for lots and lots of litigation over what substantial progress means (more business for defense lawyers).
  7. With respect to the notice required by a plaintiff to a defendant, think of it in terms of fact based pleadings, which is a difficult burden to meet absent discovery.

All Over the Place or What You Have to Show to Get Standing Under Title III of the ADA

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Today’s case, Deutsch v. Abijaoude, from the Western District of Texas (Austin) is a tour de force for discussing the possible standards for standing under title III of the ADA. As is usual, the blog entry is divided into categories: Facts; just what is necessary to show standing?; attorney’s fees and costs; and takeaways. The reader is free to read any or all of the sections. That said, this is a real easy to read blog entry and the reader will probably want to read all of it.

I

Facts:

The facts are really straightforward. The defendant is the owner of a bakery and got hit with a lawsuit by a serial plaintiff acting on behalf of a lawyer that sues hundreds of people a year for violations of title III of the ADA. The difference here is that instead of settling with the lawyer, this defendant elected to fight. In particular, he argued that the plaintiff did not have standing. Not only that, the defendant moved for attorneys fees and costs.

II

Just what is necessary to show standing?

  1. One approach that many courts take when deciding whether a person has standing under title III of the ADA it to try to figure out whether the plaintiff is likely to return to the defendant’s business. Figuring that out means looking at four different factors: A) the proximity of the defendant’s business to the plaintiff’s residence; B) the plaintiff’s past patronage of the defendant’s business; C) the definiteness of the plaintiff’s plan to return; and D) the plaintiff’s frequency of travel near the defendant.
  2. With respect to ¶ 1 post-suit efforts to burnish standing doesn’t help, because a court has to judge standing based on the facts at the time the suit is filed.
  3. Another approach that courts take is trying to determine whether a title III plaintiff has suffered a cognizable injury if he is deterred from visiting a noncompliant place of public accommodation because he has encountered barriers related to his disability there. This theory is based upon the language in the ADA that states a plaintiff does not have to engage in a futile gesture if such person has actual notice a person or organization does not intend to comply with the ADA. This approach involves assessing whether: the discriminatory barriers remain in place; the plaintiff remains a person with a disability; and the plaintiff is able and ready to visit the facility once it is made compliant. Under this approach, the plaintiff also has to show knowledge of the barriers and that they would like to visit the building in the imminent future but for those barriers.
  4. Either approach requires an intent to return. However, an intent to return does not mean just showing up at the site, rather a person has to show that they actually intend to patronize that business. In this case, the attorney testified that he gave the plaintiff a list of businesses to go and check out to see whether or not they were ADA compliant and when he did so, a log would be checked off by the plaintiff. Further, this particular plaintiff sued 385 businesses in 306 days, including the intervening Saturdays, Sundays, and holidays when the courthouse was closed. No business pre-suit notices or any efforts to allow the businesses to cure the deficient parking issues before suing were made. Finally, the attorney demanded payment of thousands of dollars in attorney’s fees before he would dismiss the suit even when the problems were quickly remedied.
  5. Notice and an opportunity to cure before suit is filed is relevant to assessing whether a plaintiff intends to return to actually patronize that business.

III

Attorney’s Fees and Costs:

  1. The defendant moved for attorney’s fees and costs. With respect to attorney’s fees, the court denied that request because the court never reached a decision on the merits since the case was dismissed on standing grounds.
  2. With respect to costs, the award of costs under the Federal Rules of Civil Procedure and applicable federal statutes allows the District Court to award just costs and does not require a finding of a party being the prevailing party in order to do so. Accordingly, the District Court awarded the defendant his costs.

IV

Takeaways:

  1. In this blog entry, I discussed an approach for fending off the serial plaintiff. I still stand behind that blog entry. This particular blog entry is a preliminary step that can be used while you are putting the preventive law pieces discussed in my fending off the serial plaintiff blog entry together.
  2. What this case shows is that the requirements for standing under title III are a bit all over the place, perhaps even within the same jurisdiction, and so you want to check out what your rules are for your jurisdiction.
  3. This case presents the argument that while testers may have standing under title III, they still have to show they truly intend to patronize the establishment in the future. Also, the context which the tester is operating in matters as well.
  4. While notice and opportunity to cure before suit is not currently required, though it may be soon as discussed in this blog entry, it is relevant to assessing whether a plaintiff is intends to return to actually patronize that business.
  5. While attorney’s fees are not going to fly where a case get dismissed on standing grounds, it may be possible to get costs. One wonders if that might not include the costs of having the building assessed for ADA compliance. If so, that itself could easily run $5-$10,000 or so.
  6. With respect to a plaintiff’s attorney demanding thousands of dollars in attorney’s fees before dismissing a suit even when the problems are quickly remedied, a plaintiff may run themselves into a situation where the claims are mooted, as discussed in this blog entry, and to subjecting himself or herself to attorney’s fees on the part of the defendant, as discussed in this blog entry.
  7. This case is an important tool for defendants when dealing with a serial plaintiff, especially when combined the steps discussed in my blog entry on fending off the serial plaintiff.

2017 Legislation of Interest in Congress

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Happy new year everyone!

 

Since it is the first blog of 2017, I thought I would start with another first.  That is, to the best of my knowledge, we have never discussed pending legislation in the U.S. Congress before. There are a couple of interesting bills that are worth discussing and so here goes. The two bills we are going to discuss are Senate Bill 3521 and H.R. 3765. H.R. 3765 would amend Title III of the ADA to provide for a notice and cure period before the commencement of a private civil action in architectural barrier cases. It passed the House Judiciary Committee 15-6, and in the Senate, its companion bill is currently referred to the Judiciary Committee. S.B. 3521 would amend the Higher Education Act of 1965 to make it easier for students to get accommodations instead of having students give the colleges and universities what is often exhaustive documentation in order for a student to receive accommodations despite having received them prior to enrolling in college. S.B. 3521 does not, at this moment, have a companion bill in the House. As is usual, the blog entry is divided into categories. I and II discuss the text of H.R. 3765 and my thoughts on same, while III and IV discuss the text of S.B. 3521 and my thoughts on same. So, depending upon your interest, I could see you reading either I and II or III and IV or all of it.

I

H.R. 3765 (Pre-Suit Notification)

  1. Makes it unlawful for any person to send or otherwise transmit a demand letter or other form of pre-suit notification alleging a violation of Section 302, 303 of the ADA (in the bill “29 U.S.C. §§12182, 12183)”, if such a letter or communication does not specify in detail: 1) the circumstances under which an individual was actually denied access to a public accommodation, including the address of the property and the specific sections of the ADA alleged to have been violated; 2) whether a request for assistance in removing architectural barriers to access was made; and 3) whether the barrier to access was a permanent or temporary barrier. Failure to comply with this provision subjects the person to a fine.
  2. A civil action under §§12182, 12183 based on the failure to remove an architectural barrier “to access into” (actual language in the bill), an existing public accommodation cannot be commenced by a person alleging such failure unless: 1) that person has provided to the owner or operator of the accommodation a written notice specific enough to allow such owner or operator to identify the barrier; and 2) during the period beginning on the date the notice is received and ending 60 days after that date, the owner or operator fails to provide that person a written description outlining the improvements that will be made to remove the barrier; or 3) if the owner or operator provides the written description above, the owner or operator fails to remove the barrier or to make substantial progress in removing the barrier during the period beginning on the date the description is provided and ending 120 days after that date.
  3. Instructs the Judicial Conference of the United States to develop a model program to promote the use of ADR, including a stay of discovery during mediation, to resolve claims of architectural barriers to access places of public accommodations.

II

Thoughts on H.R. 3765

  1. My colleague, Richard Hunt, latest blog entry suggests that pre-suit notification isn’t enough to solve the problem it is trying to address. His entry is certainly provocative and might even serve as a template if the Republicans want to go further.
  2. Imposing a fine would likely chill attorneys from pursuing title III claims. As it is, the pre-suit notice is fairly extensive. Not sure why the pre-suit notice is insufficient without the fine. You certainly can expect lots of litigation over sufficiency of the notice regardless of whether the fine remains in the final bill.
  3. The encouragement of mediation of such claims I can see going either way. On the one hand, it takes the court out of the equation, which is not necessarily a good thing for a person with a disability. On the other hand, people with disabilities are just frustrated that they can’t access places of public accommodations, and mediation is an excellent way to deal with situations involving frustrations.
  4. Under the bill, a place of public accommodation has 60 days to respond to the notice and an additional 60 days to fix the problem, which is a total of 120 days (four months).
  5. If this bill passes, then a place of public accommodation could conceivably delay the two-step process discussed here until receiving the pre-suit notice. A place of public accommodation also, especially with a fine involved, might seek to delay things further with respect to arguing over whether the pre-suit notice meets its obligations under this bill. That is, argue the 120 day clock does not start to run until proper pre-suit notification has occurred.
  6. The language of the section requiring pre-suit notice uses the term, “architectural barrier to access into an existing public accommodation.” I must confess I don’t know what the term “to access into,” means. Is it talking about any architectural barrier in or out of the place of public accommodation? Is it only talking about architectural barriers with respect to getting into the place of public accommodation? If this language stays in, and I am representing a plaintiff, I would argue that the language as it currently stands is only talking about architectural barriers with respect to entering the facility and not within the facility itself. Of course, that cannot possibly be what the legislation intends, but the argument exists nevertheless. It will be interesting to see as the bill goes along whether this language changes, perhaps to something like, “preventing access into a place of public accommodation or preventing access within a place of public accommodation.”
  7. The section making it unlawful for any person to send or otherwise transmit a demand letter or other form of pre-suit notification alleging a violation of §§302, 303 of the ADA absent meeting certain requirements references in parentheses 29 U.S.C. §§12182, 12183. They are going to have to clean this up because the correct cite is 42 U.S.C. §12182, 12183. 29 U.S.C. is where you would find the Rehabilitation Act not the ADA.

III

S.B.3521 (Making It Easier for Students to Get Accommodations in Higher Education)

  1. Forces places of higher education to adopt policies making the following documentation submitted by a student automatically sufficient to establish that he or she is an individual with a disability.
  2. Sufficient documentation includes:
    1. An IEP even if the IEP is not current or up-to-date on the date of the determination. The institution can ask for additional documentation from an individual with an IEP who was found ineligible for services or exited from eligibility during elementary school;
    2. A 504 plan;
    3. A plan or record of service for the individual from a private school, local educational agency, a state educational agency, or an institution of higher education provided in accordance with the ADA;
    4. A record or evaluation from a relevant licensed professional finding that the individual has a disability;
    5. A plan or record of disability from another institution of higher education;
    6. Documentation of a disability due to service in the uniformed services, as defined in §484(C)(a).
  3. Requires institutions to adopt policy that are transparent and explicit regarding information about the process by which the institution determines eligibility for accommodations.
  4. Requires that the institution disseminate such information to students, parents, and faculty in an accessible format, including during any student orientation, and making such information readily available on a public website of the institution.
  5. Authorizes $10 million for the National Center for Information and Technical Support for Postsecondary Students with Disabilities.
  6. Mandates that institutions submit for inclusion in the integrated postsecondary education data system or any other federal postsecondary institution data collection effort, key data relating to undergraduate students enrolled at the institution who are formally registered as students with disabilities with the institution’s office of disability services, including graduation rates for students with disabilities and the number and percentage of students with disabilities assessing or receiving accommodations at the institution providing the institution has more than 10 such students.
  7. The Act does not affect the meaning of the terms “reasonable accommodations,” or “record of impairment,” under the ADA or the rights and remedies provided under the ADA.

IV

Thoughts on S.B. 3521

  1. Currently, when students enter higher education, regardless of the record of impairment that they have and any accommodation that they may have received, the place of higher education forces the student to start all over. This is quite jarring for the student. Students all already very nervous about coming out with their disability when they enter postsecondary education and the requirement for new documentation, which is often exhaustive, only discourages them further from seeking the accommodations they need and are entitled to. This bill solves that problem.
  2. The requirement that institutions of higher learning adopt policies that are transparent and explicit regarding information about the process by which the institution determines eligibility for accommodations forces institutions of higher learning to make sure that they have the essential eligibility requirements of their program in order as we discussed in this blog entry.
  3. Requires data collection on students with disabilities.
  4. I find it interesting that in the rule of construction, it says it is not meant to be construed to affect the meaning of, “record of impairment.” However, if the documentation automatically grants a student the right to have accommodations, doesn’t that also mean that you also have a record of impairment under the ADA? I suppose the distinction is theoretical because as a practical matter, the kinds of records being deemed sufficient by this legislation, would indicate that a person has a record of a disability under the ADA.
  5. There is no companion bill in the House at the moment despite bipartisan sponsors in the Senate.
  6. Very unclear to me, despite bipartisan support in the Senate, whether a President Trump would sign S.B. 3521. Since as of this writing there is not even a companion bill in the House, I can’t see how a President Obama would have a chance to sign this bill.