Articles Posted in ADA Compliance and Defense

Published on:

1 May 2016

Federal Judge Takes Decisive Action to Protect Hotels from ADA Abuse by a High Frequency Litigant
by
Martin H. Orlick, Chair, JMBM’s ADA Compliance and Defense Group

In a rare and decisive action, a Central District Court Judge dismissed an Americans with Disabilities Act (ADA) lawsuit filed by an Arizona disabled plaintiff who has recently filed a wave of over 70 ADA lawsuits against Southern California hotels.

The plaintiff, who claims she is confined to a wheelchair, called an Orange County hotel to book a room.  She asked the hotel representative whether the hotel pool and Jacuzzi had a pool lift or other means of access for disabled persons.  The hotel employee allegedly reported that the hotel had no pool lifts.  Thereafter, allegedly, plaintiff’s “agent,” and ADA investigator, visited the hotel, verified that there were no pool lifts, and notified the plaintiff of other ADA violations.  The plaintiff claimed that she regularly frequents the area where the hotel is located and plans to do so in the future.  If there was a pool lift, plaintiff claims, she would stay at the hotel in the future.

The plaintiff, Theresa Brooke, has filed over 70 ADA lawsuits against Southern California hotels in the past 6 weeks, “every single one of which” in boilerplate fashion alleges ADA violations based on inaccessible hotel pools and spas.  In dismissing the lawsuit, the Judge noted that the “deluge [of ADA lawsuits] is ongoing, noting plaintiff, it appears, would like to stay at every Orange County hotel that presently has an inaccessible Jacuzzi.”

Citing a recent opinion (Brooke v. Kalthia Group Hotels), the trial judge on his own motion dismissed the lawsuit finding that plaintiff had not stated a claim under the ADA because a plaintiff who had not visited the hotel cannot litigate a case against the hotel based solely on calling the hotel, seeing pictures and taking a call from her private investigator. CONTINUE READING →

Published on:

23 February 2016

As the number of ADA lawsuits continues to explode, both Federal and California lawmakers are considering steps to limit abusive ADA lawsuits.

Here is an update on these positive developments from my partner, Marty Orlick, who heads JMBM’s ADA Compliance & Defense Group that has defended more than 600 ADA cases and DOJ investigations.

Amid Growing Concerns Over the Proliferation of ADA Lawsuits, Congress and the California Legislature Address Measures to Curb ADA Abuse
by
Martin H. Orlick, Chair, JMBM’s ADA Compliance and Defense Group

Since 2004, more than 20,000 ADA lawsuits have been filed in the country’s federal courts. The number of ADA filings in state courts is unavailable, but likely runs in the thousands. Nearly one half of all ADA lawsuits were filed in California with no end in sight.

From September 2013- December 2014 (the last time period the figures are available) more than 3,000 ADA lawsuits were reported to the California Commission on Disability Access (CCDA). According to the CCDA, more than one-half – 54% – of all construction-related accessibility complaints filed in California were filed by 2 law firms (one of the lawyers is fighting a State Bar suspension stemming from ADA litigation).

According to the CCDA, 46% of all complaints were filed by 14 plaintiffs seeking quick settlements rather than correction of the alleged access violations. For years, thousands of businesses, including many small minority-owned businesses, have been targeted by a growing number of repeat plaintiffs and law firms. This increasing trend has prompted state and federal action to curb ADA abuse.

For example, these findings prompted the California Legislature to enact Civil Code Section 425.55 which is intended to curb ADA abuse. Section 425.55 defines these serial plaintiffs and their attorneys as “high-frequency litigants” and requires specific procedural and substantive conditions to be met before they can file litigation.

For all who own or operate businesses serving the general public, it is important to know about state and federal efforts requiring would-be plaintiffs and their attorneys to provide a specific pre-filing notice and opportunity to cure before they can initiate litigation and how these new laws impact you. Thus far, there are no notice and cure requirements. CONTINUE READING →

Published on:

03 February, 2015
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New Resource: The ADA Compliance and Defense Guide

Download your free copy now!

The Global Hospitality Group® of Jeffer Mangels Butler & Mitchell LLP (JMBM) is pleased to announce the latest publication in our We Wrote the Book™ series : The ADA Compliance and Defense Guide, a practical handbook for owners and operators of hotels, restaurants, golf courses, spas and sports facilities, banks and other financial institutions, retail stores, shopping centers, theaters, sports arenas, and other places of “public accommodation,” as defined by the Americans with Disabilities Act (ADA).

Co-authored by JMBM’s Global Hospitality Group® Chairman, Jim Butler, and JMBM’s ADA Compliance and Defense Group Chairman, Martin H. “Marty” Orlick, the Guide reflects the complexities and ever-expanding requirements of the ADA. For a limited time, it is available for free download at www.HotelLawyer.com as described below.

About The ADA Compliance and Defense Guide, Understanding, preventing and defending claims and enforcement actions under the ADA

It will not surprise U.S. hotel owners and operators to learn that that business owners and operators in the U.S. have been subjected to more than 20,000 ADA civil lawsuits and DOJ enforcement actions since the ADA was enacted in 1991 – and most of those lawsuits were filed in the last 5 years. JMBM’s Global Hospitality Group® provides practical ADA compliance and defense advice for owners and operators. This book is an example and was written specifically to help owners and operators understand the challenges they face, encourage preventative compliance, and to prepare to defend ADA lawsuits.

Written in plain language, the Guide includes information on requirements for accessible websites, service animals, pool lifts, auxiliary aids, and the importance of developing company-wide ADA policies and procedures. Through numerous case studies, the Guide also addresses Department of Justice investigations and private plaintiff litigation. CONTINUE READING →

Published on:

01 January 2015

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ADA Issues on Websites: Department of Justice Poised to Adopt Accessible Website Standards

Since at least 2000, the U.S. Department of Justice (DOJ) has been advocating standardized website development and content to promote access to blind and low vision internet users.  In 2013, the DOJ withdrew its proposed Advanced Notice of Proposed Rule Making (ANPRM) which would have established standardized internet protocols by adopting the Web Content Accessibility Guidelines (WCAG) 2.0.

In 2006, we reported on the landmark case National Federation of the Blind v. Target Corporation, regarding “cyber accessibility” (a term we coined). Target was the first case in which any court ruled that the ADA applied to a retail website. With limited exception, the few courts that had addressed the subject uniformly held that the ADA only applied to brick and mortar architectural barriers, not to internet retail channels (Access Now, Inc. v. Southwest Airlines.)

Target argued that it complied with the ADA because its retail stores were fully compliant and that its website channel was not covered by the ADA standards.  The Court disagreed.  Plaintiffs’ class certification motion was granted.  Target paid a hefty sum and implemented WCAG standards to make its website accessible to blind and low vision customers.  The Target decision was followed with Rendon v. Valleycrest Productions Ltd.  Since Target, the DOJ and other agencies have imposed accessibility requirements for web content and services in Consent Decrees and Settlement Agreements with such industry leaders as Amazon.com, Netflix, H&R Block, Hilton International and others.

Website standards are imminent

The DOJ’s issuance of website standards is not a matter of “if”, but “when.” The regulations will “establish requirements for making goods, services, facilities, privileges, accommodations, or advantages” offered by state and local government agencies and businesses via the Internet, “specifically at sites on the World Wide Web,” accessible to persons with disabilities.

On November 25, 2014, the DOJ Civil Rights Division issued its Advance Notice of Proposed Rule Making entitled “Nondiscrimination on the Basis of Disability: Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations.”  These revised regulations, when adopted, will implement web site development standards which the DOJ has been working on for nearly a decade. CONTINUE READING →

Published on:

07 November 2014

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ADA Lawyer: FedEx sued for failure to provide
effective auxiliary aids and services for hearing and speech impaired
employees and job applicants

by

Marty Orlick | ADA Compliance & Defense Lawyer

Effective communication with blind, low vision, deaf, hard-of-hearing, speech impaired and cognitively challenged employees, potential employees, customers and guests is one of the fundamental tenets of the Americans with Disabilities Act of 1990 (“ADA”). For nearly 25 years, the ADA has been the most sweeping civil rights legislation designed to provide persons with disabilities full and equal access to public accommodations, employment and potential employment.

The DOJ . . . and private litigants have expanded litigation against companies who fail to provide a wide variety of auxiliary aids and services to effectively communicate with guests, customers, employees and job applicants. FedEx is the latest highest profile lawsuit.

In its latest effort to enforce the ADA’s effective communication requirements, the Equal Employment Opportunity Commission (“EEOC”) filed a lawsuit in a Baltimore federal court against FedEx, charging the overnight delivery giant with failing to provide basic auxiliary aids and services to effectively communicate with its deaf, hard-of-hearing and speech impaired employees and job applicants.

The suit accuses FedEx of not providing Qualified American Sign Language interpreters, Communications Access Realtime Translation (“CART”) services or closed captioned training videos during new hire orientation or staff and safety meetings to its employees and job applicants in violation of the ADA’s requirement that businesses provide such auxiliary aids and services. CONTINUE READING →

Published on:

16 September 2014

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The recent Uber lawsuit

On September 9, 2014, Uber Technologies was sued in Federal Court in San Francisco for violating the Americans with Disabilities Act (ADA) and California’s Unruh Act. The suit arose from the claim that UberX drivers refused to allow blind riders to bring their guide dogs. For a copy of the complaint, click here to see Natl Federation of the Blind v. Uber Technologies.

This is just the latest in an long history of complaints or enforcement actions involving the legal requirements concerning “service animals” under the ADA and corresponding state laws such as California’s Unruh Act.

Why public facilities are subject to these service animal rules

Like Uber taxis, all hotels, restaurants, spas, retail facilities, movie theatres, and sports and entertainment venues are places of public accommodation. As such, they are expressly subject to the ADA and corresponding state laws.

Because so many people ask us about the “service animal” issues, we thought it might be helpful to provide our industry friends with some guidelines on the major questions in this area through a series of frequently asked questions or FAQs about this subject.

FAQs about the ADA’s legal requirements for service animals

by

Jim Butler & Marty Orlick
ADA Defense & Compliance Lawyers

 

Here are some of the most Frequently Asked Questions on service animal issues under the Americans with Disabilities Act or ADA.

What qualifies as a “service animal?”

Businesses . . . may ask only two questions of individuals regarding their service animals . . .
Under the ADA, a dog or miniature horse that “is individually trained to do work or perform tasks for the benefit of an individual with a disability” qualifies as a service animal. The “work” or “tasks” performed by a service animal must be directly related to the individual’s disability. For example, the service animal might pull a wheelchair, guide a visually impaired person, or assist an individual with psychiatric disabilities.

Comfort animals and pets are NOT service animals. Comfort animals merely provide emotional support and are not individually trained to assist with a disability.

What can you ask a customer who enters your business with an animal?

Businesses and their representatives who come in contact with the public may ask only two questions of individuals regarding their service animals: CONTINUE READING →

Published on:

06 January 2014
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Hotel Lawyer with observations on the DOJ’s ADA investigation of Starwood Hotels and The Phoenician, and the recent ADA Settlement Agreement.

In January 2009, the Hotel Law Blog reported the Department of Justice’s (DOJ) Americans with Disabilities Act (ADA) Time Square Manhattan Theater District sweep of nearly 60 hotels. See ADA Defense Lawyers: ADA Sweeps by Department of Justice – Coming to a theater district or hotel near you soon? At that time, Marty Orlick, Chair of JMBM’s ADA Compliance and Defense Group – who represented an institutional investor/owner that owned an off-Broadway boutique hotel caught in the dragnet – opined that the DOJ’s investigations of America’s hotels and restaurants would only accelerate. Since then, the DOJ’s efforts to enforce accessibility at tourist destinations around the country have intensified.

In the article below, Marty brings us up to speed on the DOJ’s enforcement activity in the hospitality sector and highlights the ADA lessons to be learned by the recent agreement between the DOJ and Starwood Hotels & Resorts Worldwide Inc. and the Phoenician Golf and Resort. Marty also questions how in this investigatory and litigation environment, Starwood or The Phoenician can find themselves targets of a DOJ sweep.

CONTINUE READING →

Published on:

6 November 2013

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ADA Defense lawyer: Pool lift litigation proliferates. Why enterprise-wide compliance is the best solution.

It has been almost a year since the Department of Justice’s ADA requirement for fixed or permanent pool lifts in “places of public accommodation” has been in effect. Now a fact (and cost) of doing business in the hospitality industry, many of our clients and friends in the industry are asking, “what’s the result of all this activity, what’s going on now?” Well, after all the lobbying, education, handwringing, headaches, counseling, and expense, we can say …. things went pretty much as predicted:

  • Many hotel owners complied with the requirements and were prompted to take a comprehensive look at all ADA requirements and bring their properties and procedures into enterprise-wide compliance.
  • Others are getting sued by serial plaintiffs, armed with a new reason to sue hotel owners under the ADA.

Marty Orlick, Chair of JMBM’s ADA Compliance and Defense Group and senior member of its Global Hospitality Group® has been helping hotels, restaurants, retailers, banks and other commercial properties bring their properties and operations into enterprise-wide ADA compliance for years. Here’s his report on what’s going on.

CONTINUE READING →

Published on:

8 April 2013

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ADA defense lawyer: Striking the right balance

The ADA defense and compliance team at JMBM has long advocated compliance with the Americans with Disabilities Act, commonly known as the ADA. ADA compliance is good business and it is the law. (See articles at www.HotelLawyer.com under HotelLawBlog/ADA Defense & Compliance.)

But we have all seen some terrible abuses of this law in the hands of certain plaintiffs and attorneys who literally file dozens of cases. I have a service that follows the filing of ADA complaints, and recently, one lawyer filed 18 cases in one day against various small businesses for purported ADA violations.

It seems as if both courts and legislatures are getting fed up with abusive practices by some greedy or overzealous advocates. We recently reported on action by the California legislature in “Finally! Relief from abusive ADA litigation in California?“)

Today, we want to recognize a recent federal court decision that reflected outrage at abusive plaintiffs and their lawyers which detract from the spirit and noble purpose of the ADA. We think this kind of insight and approach will help to strike a better balance that we believe was the intent of the ADA.

Today, my partner Marty Orlick provides us with a trenchant summary of the case, including some insightful quotes from the court’s opinion.

CONTINUE READING →

Published on:

30 January 2013

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Hotel Lawyer talking about California’s new law aimed at ADA litigation reform.

ADA litigation claims have skyrocketed. Since January 2005, 16,530 ADA lawsuits — lawsuits alleging violations of the Americans with Disabilities Act (“ADA”) — have been filed in federal courts across the country. Even more have been filed in state courts.

In the article below, two senior members of our Global Hospitality Group® talk about a new law passed in California with the goal of reducing abusive ADA litigation. Parts of this law became effective in September 2012, and the rest of it became effective January 1, 2013. Marty Orlick, Chair of JMBM’s ADA Compliance & Defense Group, and David Sudeck, hotel and timeshare lawyer, look at some of the key provisions of this new law and provide their observations about their impact.

Marty and David frequently work together to advise hotel and timeshare owners and operators in connection with Federal and State accessibility law compliance. In this article, they bring California business owners some insight into the likely effectiveness a well-intentioned new law intended to curb abusive ADA litigation.

CONTINUE READING →