13 October 2016
JMBM’s ADA Defense & Compliance team takes the ADA seriously, and we recommend that our clients take a proactive approach in identifying and solving potential problems before they become lawsuits. But sometimes serial plaintiffs just go too far with claims that cannot be justified and which violate the purpose and spirit of the ADA. Today, my partner Marty Orlick talks about a recent case that offers property owners and operators some relief against this type of harassment.
Case Dismissed: Judge Rules that Plaintiff’s Pool Lift ADA Cases
Have No Place in Federal Court
Martin H. Orlick, Chair, JMBM’s ADA Compliance & Defense Group
In the latest decision against an Arizona “high frequency ADA litigant”, the United States District Court for the Central District of California ruled this week that cases like Brooke vs. Perry Family Trust, et al. have no place in Federal Court.
The plaintiff, Theresa Brooke, has filed hundreds of identical ADA lawsuits against Arizona and California hotels, including a half-dozen suits last week. The plaintiff, a disabled resident of Arizona, contends that she was discriminated against by hundreds of hotel owners based on her disability. She claims that these hotels violated the 2010 ADA Standards because they fail to provide permanent pool lifts at either or both the pool and spa.
In each case, Brooke alleges she called the hotels to “inquire whether the pool or Jacuzzi had a lift or other means of access for disabled persons” and the representative informed her that it did not. Plaintiff then alleges she sent her “agent” – “an expert in ADA accessibility guidelines” – to visit the hotel, take pictures of the barriers and report back to her. Plaintiff claims she frequently visits or intends to visit the area “in the coming months and for the indefinite future” for leisure and business.
In dismissing the lawsuit, the judge found that the plaintiff failed to allege she actually visited the hotel – in fact it was clear from the complaint that she had not – and therefore did not actually encounter any barriers that discriminated against her. The Court dismissed the lawsuit, including the state law damage claims.
Plaintiff’s counsel will boast that there are no defenses to his lawsuits. However, those who oppose them are often successful. In one of our cases, the judge dismissed the lawsuit for the same reasons.
We understand it is often cheaper and easier to pay tribute to settle the lawsuits. However, for those who pursue a more aggressive position, they can prevail. With a proper litigation strategy, these types of cases can be won. All hotel owners and operators need to know that these cases can be won without substantial cost.
If you would like to discuss any ADA issues, please contact us:
Chairman, Global Hospitality Group®
Chairman, ADA Defense Team
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: