Getting Hit by the Serial ADA Plaintiff: What Hotel Management Should Know...

By Bruce Liebman Co-Managing Partner, Kaufman Dolowich & Voluck LLP | April 14, 2019

Co-authored by Rebecca Anguiano, Attorney, Kaufman Dolowich & Voluck LLP

Hotels, like so many other businesses, are increasingly being hit with lawsuits claiming discrimination against disabled individuals in violation of Title III of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12181-12189. These lawsuits are being filed by what are called ADA testers-individuals who visit businesses intentionally looking for non-compliance with the requirements of the ADA. These individuals file dozens of lawsuits at a time and are considered somewhat serial plaintiffs.

Common complaints presented involve issues relating to architectural barriers in the business's parking lot (e.g., inadequate or no handicap parking spaces; lack of access ramps) or inside the business complex itself (e.g., lack of handicap accessible restrooms; lack of access ramps), which impede the disabled plaintiff's ability to navigate and/or access the property. With the number of these lawsuits increasing on an annual basis, businesses should be aware of key defenses to be argued, particularly those relating to the plaintiff's ability to bring the lawsuit altogether (their standing).

Now, you likely won't know that you've been visited by one of these ADA testers until you receive a copy of the lawsuit, at which point your options are to proceed in defending the lawsuit or attempting to settle early on out of court. Obviously, your counsel will assist you in determining what the best plan is for you, but it is worth knowing that the majority of these cases do result in settlement out of court due in large part to the attorney fee component attached to the claim.

While the ADA is certainly well-intended, aimed at eliminating discriminatory barriers against the handicapped, the driving force in recent years certainly appears to be the claim for attorneys' fees. An ADA plaintiff cannot recover monetary damages, however, he/she is entitled to seek recovery of attorneys' fees along with their injunctive relief.

Most, if not all, of these access claims seek injunctive relief wherein the defending party will need to make remedial changes to their structure in order to bring it in compliance with ADA regulations. In order to proceed with seeking such relief, an ADA plaintiff must demonstrate to the court that there is a likelihood that he/she will face future harm if the architectural issues are not remedied.

Significantly, defendants are finding success in challenging a plaintiff's standing to proceed with an ADA access case as courts are strictly enforcing the need for the ADA plaintiff to demonstrate a real intent to return to the property, looking at elements such as the proximity of the plaintiff's home in relation to the business. An argument on standing may seem a bit rudimentary but given recent court decisions it is certainly an underutilized argument that should be considered in every case.

As the number of these cases filed will only continue to rise, particularly given that many attorneys perceive these cases as automatic claims for fees, it is worth knowing all possible arguments (even those that may appear the most basic) to be made should you proceed with defending the case.

In order to establish standing, a plaintiff in an ADA access case must show the following three elements: 1) injury-in-fact; 2) a causal connection between the injury and the conduct complained of; and 3) that it is likely the injury will be redressed by a favorable ruling. Kennedy v. Cape Siesta Motel, LLC, 2018 U.S. Dist. LEXIS 171725 (M.D. Fla. Oct. 4, 2018). It is the "injury-in-fact" element that requires the plaintiff to "plausibly show that she will suffer future disability discrimination by the defendant;" this requires a "real and immediate" threat of future injury. Id., at *5.

In analyzing the threat of future discrimination, courts weigh the following four factors: "(1) the proximity of the defendant's business to the plaintiff's residence; (2) the plaintiff's past patronage of the defendant's business; (3) the definiteness of the plaintiff's plan to return; and (4) the frequency of the plaintiff's travel near the defendant's business." Id. Courts analyzing these factors are to consider "the totality of all relevant facts" in order to decide whether a plaintiff faces a "real and immediate threat of future injury." Id., at *6.

In Kennedy v. Cape Siesta Motel, LLC, the District Court for the Southern District of Florida granted summary judgment for the defendant motel, dismissing an ADA tester's access claims, as the Court found the plaintiff had not demonstrated that she would "likely return to the property and face discrimination." In making its decision, the federal court weighed the above factors finding the following to be determinative in finding that the Plaintiff lacked standing.

First, the Court noted that the Plaintiff lived approximately 175 miles from the defendant's business, with a second home 79 miles from the business. The court found this 175-mile distance was too large, negating "the likelihood of future injury absent other connections to the area." Id., at *7. The Court similarly found the 79 mile distance to the second home "substantial" enough to "cut[] against a finding that Plaintiff has standing." Id.

Next, the Court found that the Plaintiff failed to demonstrate a definite plan to return to the property where she merely alleged that she planned to return "in the near future" to check for ADA compliance. Lastly, the Court found that the Plaintiff did not show that she frequently traveled near the property where she merely alleged that she traveled in the "county," which the Court noted was a "large area."

Overall, the Florida District Court's decision reinforced the position that generic "some day" plans to return do not amount to a "concrete and realistic plan" to return to the property and will not sufficiently establish the party's standing. We will note that the argument set out in Kennedy is merely one approach to challenge standing and there are in fact other arguments that can be made. In addition to the above, the alleged barriers should be looked at from the perspective of the Plaintiff's particular disability as courts have held that plaintiffs' complaints must relate to their respective disabilities. Further, plaintiffs do not have standing to challenge barriers they were not aware of at the time of filing their complaint.

The Kennedy case is one of many federal court decisions taking a hardline look at the adequacy of a plaintiff's claims under the ADA. Although the Kennedy case is taken out of Florida, it provides a good argument to support a challenge to an ADA Plaintiff's standing and is certainly worth reviewing.

With the number of case filings increasing each year, and the onslaught of ADA cases based on website accessibility, if your company has not been hit by one of these cases before it is highly likely that it will at some point in time. While these cases are more prevalent in certain locations (California, New York, and Florida are the top three states with the most ADA access case filings), it is certainly worthwhile to be aware of these cases and be prepared to have to defend one in any location.

Although our discussion did focus on a Florida case, it should be recognized that different states may (and do) differ on their interpretation of what a plaintiff must show to satisfy standing, with some jurisdictions (e.g., California) being a bit more liberal than Florida. Your particular jurisdiction will impact the strength of your argument (and perhaps even your approach to the case overall), but again, your counsel will be able to advise you more fully on that.

As some final recommendations, we do want to remind you that as with all lawsuits, the mere allegation of non-compliance does not in fact mean that there is actual non-compliance-these are simply allegations like any other that must be proven. Though it requires some cost, we do find it is worth retaining an expert to perform an examination of your property early on when you first receive notice of an access claim in order to determine whether there is in fact non-compliance and the extent of same.

The best approach in defending these cases (and any case for that matter) is to formulate your strategy early on in order to avoid unnecessary costs and expenses. Should your expert assessment reveal compliance issues early on you will certainly be in a better position to try to resolve the case early before incurring high litigation fees that come with defending a lawsuit. Now, just to be clear, an early resolution does not always come at a "low cost," as settlement will not only require payment of some amount to the complaining party's attorneys, but it will also require that any non-compliant structures be fixed, which, depending on the extent of your building's issues, could equate to a much larger sum.

As with any lawsuit, many variables must be considered in determining the best strategy and approach to take. You and your counsel will be in the best position to make that determination, but we do hope that this article has at least provided some insight into one possible approach to consider.

Ms. Anguiano This article was co-authored by Rebecca Anguiano. Rebecca Anguiano focuses her practice on employment litigation representing employers and management in cases involving alleged wrongful termination; harassment; discrimination; and wage and hour violations. Ms. Anguiano has represented clients in federal and state court, as well as before federal and state agencies. Ms. Anguiano also offers experience in the areas of civil litigation, community association law, Directors and Officers Liability, and insurance coverage disputes. She may be reached at ranguiano@kdvlaw.com.  

Mr. Liebman Bruce S. Liebman is co-managing partner in the Ft. Lauderdale and Boca Raton offices of Kaufman Dolowich & Voluck LLP, experienced in the representation of international and domestic hospitality companies and casinos in the area of liability, collections and gaming issues. Mr. Liebman has over 20 reported cases on jurisdictional, venue selection and forum non conveniens issues from Federal Courts across the nation. He also has more than 20 years of experience practicing in the areas of labor and employment law, representing management in hundreds of matters before federal and state agencies and in federal and state court. Bruce Liebman can be contacted at 954-302-2397 or bliebman@kdvlaw.com Extended Biography

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