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Published on:

1 April 2017

JMBM’s ADA Compliance and Defense team, led by my partner Marty Orlick, continues to help hotels and other businesses achieve compliance under the Americans With Disabilities Act (ADA), and is actively defending numerous ADA lawsuits brought against our clients.

As we predicted, more and more of these lawsuits allege that a company’s website and reservation system is not accessible to visually impaired customers. In his article below, Marty Orlick reports why a recent U.S. District Court decision may affect the future of ADA website litigation, and urges hoteliers to ensure their websites are accessible.

 

Judge Dismisses ADA Website Lawsuit
by
Martin H. Orlick, Chair, JMBM’s ADA Compliance & Defense Group

In September 2016, we published an alert that a group of plaintiff’s ADA lawyers had threatened a number of businesses – including hotels – with litigation claiming their websites failed to comply with “ADA Guidelines.”  (Read ADA Compliance & Defense Lawyer: ADA Website Accessibility Lawsuits Escalate.) These lawsuits have since been filed with greater frequency.

Since then, a number of threats have turned into lawsuits seeking injunctive relief (website accessibility), a multiple of $4,000 minimum statutory damages under California’s Unruh Civil Rights Act (per visit to the website or from being deterred from visiting the website), attorneys’ fees and litigation costs.

Years ago, the Department of Justice (“DOJ”) adopted rules requiring all federal agency websites to conform to the WCAG 2.0 A and AA Success Criteria as a means of providing accessible websites to persons who are blind, low vision, color blind or who suffer cognitive disabilities. In 2010, the DOJ issued a Notice Of Proposed Rulemaking (NOPR) stating that it intended to adopt formal ADA Guidelines for state and local government agencies to meet when designing websites. The DOJ intended to adopt the WCAG 2.0 A and AA Success Criteria for state and local government websites.  Justice then announced that it intended to adopt these same basic standards for private businesses’ websites.  But the DOJ withdrew its NOPR and has yet to issue final rules regarding web access standards for state and local agencies or private businesses.

ADA website lawsuit violates due process

Last week, in what is a ground breaking decision of particular importance to the hospitality industry, the U.S. District Court for the Central District of California threw out a serial plaintiff’s lawsuit which alleged that Domino’s Pizza’s website violated the Americans with Disabilities Act (ADA) and related California anti-discrimination laws by not conforming to the WCAG 2.0 A and AA Success Criteria. CONTINUE READING →

Published on:

6 January 2017

ADA Hospitality Defense and Compliance Lawyer: Hotel mixed-use projects have proliferated over the past decade or two — projects that combine a hotel with retail, residential, entertainment, office and other uses. In recent years, many of these projects combine hotel and shopping center elements. We are big fans of hotel mixed-use.

Over the years, we have written about the numerous advantages that accrue to both hotels and shopping centers, when hotels are added to the right shopping or retail center.  One study showed that the right hotel can boost gross sales at shopping centers 20% – 40% — and hotels can get 30% – 40% RevPAR advantage over hotels in their competitive set.

But those of you with these hotel in mixed-use projects with shopping centers or other retail elements know that mixed-use projects inject numerous additional legal and business issues that hoteliers usually don’t deal with in stand-alone hotel projects. One such critical issue is that of “common areas.”

In the article below, my partner, Marty Orlick, writes about one aspect of common area liability that you may have overlooked in defense to ADA violations. Of course, the ultimate analysis will depend on the precise facts of the situation at hand and the structure of the hotel’s participation in the mixed-use project — particularly whether or not the hotel is owned in fee or is a tenant in the project.

How many judges does it take to rule that shopping center tenants
are not liable for ADA violations in common areas?
by
Marty Orlick

First published in the October 2015 issue of the California State Bar’s Real Property Law Section E-Bulletin

Congress passed the Americans with Disabilities Act of 1990 (“ADA”) “to provide clear, strong consistent, enforceable standards addressing discrimination against individuals with disabilities” in employment, public accommodations, transportation and federal, state and local government services. 42 U.S.C.§12101(b)(2). Title III of the ADA applies to public accommodations including shopping centers, theaters, arenas, restaurants, health clubs, hotels, banks, public space in office buildings, and nearly every manner of retail premises. Virtually every leased location which serves the general public and is engaged in commerce is subject to the accessibility requirements of the ADA. CONTINUE READING →

Published on:

19 October 2016

ADA Defense Lawyer with a new case on Uber and Lyft

Uber and Lyft are back in the headlines again, but not for the usual ride share issues. This time it is for alleged violations of the ADA. Here is what my partner Marty Orlick, Chair of our ADA Compliance & Defense Group, has to say on this development.

The City of Brotherly Love is Showing Love to Persons with Disabilities
Under the ADA,
but not to Lyft or Uber
by
Martin H. Orlick, Chair, JMBM’s ADA Compliance & Defense Group

From coast to coast, Uber and Lyft have come under increasing fire from disability rights organizations and have faced litigation because their ride share practices allegedly discriminate against persons with disabilities.  Federal lawsuits were also filed in San Francisco against Uber and Lyft .

In what appears to be the most draconian decision to date, a Philadelphia Court of Common Pleas judge ruled on October 6, 2016 that Uber and Lyft repeatedly violated the Americans with Disabilities Act of 1990 and issued an order suspending their rideshare services in the City of Brotherly Love.  The ramifications of this Order could be felt throughout the United States and Canada, which has similar civil rights laws to protect persons with disabilities.

Common Pleas Judge Linda Carpenter’s Order in Blount v. Philadelphia Parking Authority granted plaintiff’s request for an injunction prohibiting the parking authority from authorizing Uber and Lyft to operate in the City of Brotherly Love.

The Complaint alleged that Uber and Lyft systematically failed to provide vehicles which accommodate persons in wheelchairs, routinely refuse to accommodate persons who travel with service animals and charge excessive pricing for such accommodations. CONTINUE READING →

Published on:

16 October 2016

Click here for the latest articles on ADA Compliance & Defense.

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. For many years now, we have called attention to the importance of making website ADA-compliant, but hotels, resorts, restaurants, banks, retailers and other owners and operators of commercial real estate continue to be vulnerable to one of the more recent and serious waves of ADA complaints. See Charles Schwab settles web site accessibility claim and New ADA standards for website accessibility.

Today, my partner Marty Orlick talks about a recent wave of website accessibility claims plaguing owners of commercial real estate. Be smart. Understand the problem and fix it now. This issue is not going to go away.

 

Hotel Websites and Reservation Systems
Is your website accessible to the blind and vision impaired?
by
Martin H. Orlick, Chair, JMBM’s ADA Compliance & Defense Group

A version of this article was published by the California Bankers Association.

How would you react if you received a letter from a law firm alleging that your hotel’s website is in violation of the Americans with Disabilities Act (ADA) because it discriminates against persons who are visually disabled?

If your reaction is to take it seriously, you would be correct.

How would you react if you discovered a near-identical letter was sent to hundreds of other hotels, restaurants and other businesses – by the same law firm?

If your reaction is that you received a cookie-cutter letter by a plaintiff firm that is using a dragnet to identify possible defendants for lawsuits, you would also be correct.

How would you respond to the demand that you bring your website into compliance with international standards for web accessibility?

If you respond by picking up the phone to call experienced ADA legal counsel, you will be saving time and money.

What it’s all about

In January 2016, the law firm Carlson Lynch Sweet & Kilpela (CLSK) sent hundreds of near-identical form letters to national hotels, restaurants, financial institutions and other businesses, contending that the Department of Justice (DOJ) – the federal agency responsible for adopting ADA Standards – requires businesses to make their websites compliant with the ADA. (Note here that the DOJ has not formally adopted any specific website accessibility guidelines.) CONTINUE READING →

Published on:

13 October 2016

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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
by
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. CONTINUE READING →

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
Click here for the latest articles on ADA Compliance & Defense.

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

Click here for the latest articles on ADA Compliance & Defense.

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

Click here for the latest articles on ADA


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 →