News for Business Owners and Commercial Property Owners: Heads Up, Bad News, Good News!
Arizona Business Owners and Commercial Property Owners may get some relief from lawsuits alleging violations of the Americans with Disabilities Act and/or the Arizonans with Disabilities Act.
Heads UP! Here is some important news for business owners and commercial property owners. The Americans with Disabilities Act and the Arizonans with Disabilities Act (collectively “Disabilities Acts”) were passed to assist citizens with physical disabilities as they live, work and recreate in our society. The Disabilities Acts prohibit discrimination against people with disabilities in employment, transportation, public accommodation, and governmental activities. The Disabilities Acts require businesses that are open to the public to accommodate disabled people. That is a benefit to society as a whole.
Unfortunately, the regulations adopted to enforce these Disabilities Acts contain literally hundreds of pages of technical requirements. The Acts, regulations and their hundreds of pages of technical requirements apply to commercial property owners and businesses that are open to the public. It is estimated that the great majority of businesses dealing with the public are not fully in compliance with the Acts, regulations and technical requirements.
Enforcement of the Disabilities Acts are within the purview of several federal and state governing agencies and historically, enforcement has been limited to actions by these governmental agencies.
Bad News! The Disabilities Acts also provides a civil remedy for “plaintiffs” seeking to enforce the Acts. Specifically, a non-complying business or commercial property owner may be forced to bring its property/establishment into compliance upon the filing of a legal action by a “plaintiff”. The Disabilities Acts allow the prevailing “plaintiffs” to recover their attorney fees from the non-complying business or commercial property owner.
In the last year hundreds of lawsuits have been filed in Maricopa County by Advocates for Individuals With Disabilities Foundation, Inc., and Advocates for Individuals With Disabilities LLC, (collectively “AID”), against hundreds of businesses or commercial property owners alleging a variety of Disabilities Acts violations. All of the lawsuits on behalf of AID were filed by the same plaintiffs’ attorney. The lawsuits all appear to demand that the alleged violations be fixed and that business defendants pay $7,500 in attorney fees. Many of the lawsuits allege violations of Disability Acts requirements dealing with handicapped parking, van accessible handicapped parking and the posting of certain signs at specified heights, items that are easily recognized by elementary reconnoitering. Few of these lawsuits have gone to trial. The AID lawsuit scheme appears to be less than altruistic; the plaintiffs willingly accept a cash settlement with defendants who would rather settle than pay the cost of a legal defense, particularly when they are guilty of some technical violation.
Good News! In the last month the Arizona Attorney General moved to intervene in at least one of the AID cases, stating that AIDs’ hundreds of lawsuits is “part of a concerted effort to improperly use the judicial system for its own enrichment”, labeling the lawsuits a “systematic abuse of the judicial system.” The Attorney General has indicated that it will ask the Court to consolidate all of the AID lawsuits into a single proceeding. If the Attorney General succeeds, the defendant businesses and commercial property owners will likely need to bring their premises into compliance with the Disability Acts, but they will probably not be forced to pay the demanded attorney fees. The Court will be asked to either: 1) deny AID reimbursement of its attorney fees as a result of its abuse of legal process and improper use of the judicial system; or 2) divide AID attorney fees among the numerous defendants on some pro rata basis; i.e. one attorney fee award rather than hundreds.
Disabilities Act Compliance! If you want to see if your business or property is Disabilities Acts compliant you may review any of several publications found on the web by typing “ADA Compliance Guidelines” on Google, Bing or other search engines. You may start with the Department of Justice publication “2010 ADA Standards for Accessible Design-Americans with Disabilities Act”. Alternatively you may consult with an architect or engineer experienced with ADA compliance. Many of the fixes are easy to accomplish. There may be exceptions in the Disabilities Acts regulations for fixes that are not so easy to accomplish.
If you have received a demand letter or a complaint alleging Disabilities Acts violations you should consult with legal counsel about your responsibilities, exposure and/or defenses.
This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice regarding News for Business Owners and Commercial Property Owners, or any other litigation matters, please feel free to contact Roger C. Decker at 480.461.5343, log on to udallshumway.com, or contact an attorney in your area. Udall Shumway PLC is located in Mesa, Arizona and is a full service law firm. We assist Individuals, families, businesses, schools and municipalities in Mesa and the Phoenix/East Valley.