Articles Posted in ADA Compliance and Defense

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4 February 2020

See how JMBM’s Global Hospitality Group® can help you.
Click here for the latest articles on ADA Compliance and Defense.

In Part 1 of this 3-part series, my partner, Marty Orlick, Chair of JMBM’s ADA Compliance and Defense Group, explains how we got from providing parking for disabled guests, to providing websites and mobile apps that can be accessed by potential guests who are blind or sight impaired.

Now, in part 2, he writes about a few key court decisions that may affect ADA compliance and litigation, and what they mean to the hospitality industry.

This part is titled: ADA Website Accessibility Lawsuits Won’t Go Away in 2020: Part 2 – Rights to Due Process and Standing Requirements.

CONTINUE READING →

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30 January 2020

See how JMBM’s Global Hospitality Group® can help you.
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JMBM’s Global Hospitality Group® has defended hundreds of hotel, resort and restaurant owners all over the United States in ADA litigation, and has provided counseling that has brought entire hotel portfolios into compliance with the ADA.

Hospitality industry veterans fully understand the need to remove physical barriers to disabled guests, which can include a lack of accessible parking, no accessible paths of travel on the hotel grounds, counters exceeding height limits, bathrooms that aren’t accessible to wheelchairs, and so on.

Increasingly, however, we are seeing ADA lawsuits alleging an establishment’s website and mobile application is inaccessible to persons who are blind or sight impaired and use screen reading software.

My partner, Marty Orlick, Chair of JMBM’s ADA Compliance and Defense Group, has written extensively about websites and ADA compliance, and is experienced in defending ADA website lawsuits. In his recent article for Law360 on the topic, he explains the issues, covers recent court decisions, and details ADA website litigation that is specific to hotels.

We’re going to deliver the article to you in blog-sized bites, the first of which is titled, ADA Website Accessibility Lawsuits Won’t Go Away in 2020: Part 1 – How We Got Here.

CONTINUE READING →

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23 January 2020

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

Over the years, my partner, Marty Orlick, Chair of JMBM’s ADA Compliance and Defense Group, has written about service animals used by persons with disabilities, and what hospitality staff needs to know about how to accommodate them. For example, what should the hostess of your restaurant do when a miniature horse enters your establishment with its disabled owner? What kind of animals qualify as service animals, anyway? And what is the owner’s responsibility?

Read Marty’s latest article on this topic, The ADA and Service Animals – Don’t Horse Around.

Click here to read the article.

CONTINUE READING →

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29 May 2019

JMBM’s ADA Compliance and Defense Group has defended more than 750 ADA lawsuits and DOJ investigations or actions brought against owners and operators of hotels and other businesses classified as “public accommodations” under the Americans with Disabilities Act (ADA). A federal Grand Jury has indicted a prolific ADA plaintiff for income tax evasion. More than just an interesting story, Marty Orlick explains how this might affect current and future ADA litigation.

 
Serial Plaintiff Who Filed Nearly 3,000 Americans with Disabilities Act (‘ADA’) Lawsuits is Indicted by a Federal Grand Jury and Faces Possible Imprisonment and Fines for Income Tax Evasion
by
Martin H. Orlick, Hotel Lawyer  & Chair,
JMBM’s ADA Compliance & Defense Group
In an ironic twist of fate, Scott N. Johnson, Esq., a disabled Sacramento attorney, who has filed nearly 3,000 ADA lawsuits as plaintiff, starting in the United States District Court for the Eastern District of California, now faces possible jail time for felony income tax fraud according to a Federal Grand Jury Indictment.

On May 23, 2019, United States Attorneys filed a Grand Jury Indictment, United States of America v. Scott Norris Johnson, accusing Johnson of three counts of “Making and Subscribing a False Tax Return” by failing to declare substantial income derived from ADA settlements on his U.S. Individual Income Tax Returns and his U.S. Corporation Income Tax Returns for the tax years 2012-2014.

According to the Indictment, from no later than “on or about January 28, 2008, SCOTT NORRIS JOHNSON owned and operated Disabled Access Prevents Injury, Inc. (“DAPI”), a corporation registered in the State of California. DAPI was treated as a C corporation for tax purposes.” The Indictment alleges that Johnson was DAPI’s sole shareholder and that DAPI “provided legal services associated with lawsuits that it filed on behalf of SCOTT NORRIS JOHNSON as the plaintiff.”
CONTINUE READING →

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UPDATE: On December 23, 2020, the Fourth Appellate District Court dismissed the Riverside County District Attorney’s case against James Rutherford and his attorneys, on appeal. As reported in our May 21, 2019 blog below, the DA’s case alleged ADA serial plaintiff James Rutherford and the lawyers who regularly represent him were involved in abusive litigation. The Appellate Court dismissed this claim (see unpublished Opinion here) as the ADA lawsuits were protected by California’s litigation privilege. The Court wrote: “As we explain, the litigation privilege applies to the People’s complaint, and the People have not shown that an exception to the privilege applies.” It was our view then, and even more so after the Appellate Court’s decision, that the Riverside D.A.’s theory of the case led to the inevitable outcome. Perhaps the D.A.’s office will take a fresh look at the facts of the case and apply a new theory if it intends to pursue a case against serial ADA litigants.

21 May 2019

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 has defended more than 750 ADA lawsuits and DOJ investigations or actions brought against owners and operators of “public accommodations.” Such properties include hotels, resorts, restaurants, timeshares, bed and breakfasts, spas, sports facilities, wineries, theaters and other commercial real estate, such as apartment communities, shopping centers, retail stores and banks.

Today, Marty shares some good news from Riverside, California, where the Riverside County District Attorney’s Office is seeking to stop abusive ADA lawsuits filed by serial litigants.

Riverside County DA drops the hammer on ADA litigant and counsel
to stop abusive litigation
by
Martin H. Orlick, Hotel Lawyer  & Chair,
JMBM’s ADA Compliance & Defense Group
In an extraordinary case charging ADA litigation abuse, the Riverside County District Attorney’s Office filed an action on behalf of the People of California seeking to permanently prevent serial ADA plaintiff James Rutherford and two law firms that regularly represent him (Manning Law and the Law Offices of Babak Hashemi, and individual members of the firms) from filing abusive lawsuits. The Complaint alleges that the defendants violated various Business & Professions Code sections designed to protect the public against “unlawful, unfair or fraudulent acts or practices” and seeks civil penalties not to exceed $2,500 for each violation and other equitable relief. Civil penalties in this case could exceed $800,000 if the allegations prove true.

The Complaint alleges that “Defendants filed 323 lawsuits based on alleged violations of the Americans with Disabilities Act” in federal and state courts. Many of these lawsuits were filed against hotels and retailers. According to court papers, the pleadings filed by the defendants follow a pattern of near-identical “allegations, except for the identity of the named defendants and the date of the alleged harm.”

This lawsuit is eerily similar to a lawsuit filed by the Arizona Attorney General against Peter Strojnik, Sr., who filed nearly 2,000 identical ADA lawsuits against Phoenix/Scottsdale businesses. Suspended from practicing law, Mr. Strojnik surrendered his license to avoid disbarment. Another lawyer in New Mexico also surrendered her license in lieu of disbarment over ADA litigation abuse. CONTINUE READING →

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15 February 2019

$87 billion in hotel transactions involving more than 3,900 properties
LOS ANGELES—The hotel lawyers of JMBM’s Global Hospitality Group® are pleased to present their updated Hospitality Credentials, which include clients and projects that represent more than $87 billion in hotel transaction experience involving more than 3,900 properties worldwide – more than any other law firm.

“If you are a hotel owner, developer, or capital provider, our hospitality lawyers can provide expertise and experience you just won’t find elsewhere,” said Jim Butler, Chairman of JMBM’s Global Hospitality Group. “Whether you are buying or selling a hotel, developing a new one, need a privacy and cybersecurity plan, or defend an ADA lawsuit – we have lawyers who know the ropes, and can guide you every step of the way.”

JMBM’s Global Hospitality Group provides a full range of services to the hospitality industry including:

  • ADA compliance & defense
  • Cannabis
  • Celebrity chef agreements
  • Construction
  • Corporate governance
  • Cybersecurity
  • Data privacy
  • Development
  • Equity & joint ventures
  • Expert witness
  • Fiduciary duty
  • Financing
  • Foreign investment
  • Franchise & licensing
  • Hotel-specific contracts
  • Labor & employment
  • Land use & environmental
  • Leasing
  • Litigation
  • Management agreements
  • Mergers & Acquisitions
  • Opportunity Zone
  • Proposition 65
  • Purchase & sale
  • Shareholder disputes
  • Tax
  • Trademark & copyright
  • Trusts and estates
  • Union negotiations
  • Union prevention
  • Vacation ownership
  • Workouts, bankruptcies & receiverships
“Exceeding $87 billion in hotel transactions involving 3,900 properties is a new milestone, and one I am proud to announce,” said Butler. “I am grateful to all of our wonderful hospitality clients who have shown us their trust and confidence over the years and continue to provide us with challenging and meaningful work.”

About JMBM’s Global Hospitality Group
JMBM’s Global Hospitality Group is the premier hospitality practice in a full-service law firm and the most experienced legal and advisory team in the industry. The Group publishes the Hotel Law Blog and hosts the annual Meet the Money® National Hotel Finance & Investment Conference (May 6-9, 2019 in Los Angeles). For more information visit www.HotelLawyer.com.

Contact:

Jim Butler
jbutler@jmbm.com
+1 310-201-3526

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21 June 2018

As the number of electric and hybrid vehicles in California continues to grow, we are also seeing the proliferation of electric vehicle charging stations in the parking areas provided by hotels, theaters, stadiums and hotel mixed-use properties. While owners and managers of these facilities are providing a much-needed service to their guests, many are unaware that – at least in California – if their facility provides electric vehicle charging stations, a certain number of them must be accessible to the disabled.

The regulations and requirements for these accessible charging stations are very specific, and the article below, written by my partner Marty Orlick, gives only a high-level summary of the scoping and technical requirements. This is an area where you really need to talk to the experts.

 
Are Your electric vehicle charging stations “accessible” to disabled guests
under California’s latest regulations?
by
Martin H. Orlick
Chair, JMBM’s ADA Compliance & Defense Group
With the surge in popularity of electric and hybrid vehicles, the need to provide Electric Vehicle Charging Stations (EVCS) is on the rise at hotels, theaters, stadiums, and hotel mixed-use properties. If your EVCS are not accessible to your disabled guests, here is what you need to know.

California’s Regulations for EVCS Accessibility

In California, if your commercial facility provides EVCS for your customers and guests, you must also provide a certain number of EVCS that are accessible.

California’s accessibility regulations for EVCS are in the 2016 California Building Code (CBC), and went into effect on January 1, 2017. The regulations supersede and expand upon California’s little-known “Interim Disabled Access Guidelines for Electric Vehicle Charging Stations” created in 1997.

The CBC accessibility regulations include both scoping requirements (what type of EVCS and how many) and technical requirements (where to locate EVCS, and how to make them accessible).

Scoping Requirements

The number and type of accessible EVCS required is determined by the total number of EVCS at a facility. When new EVCS are added to a site with existing EVCS, the total number of new and existing EVCS is used to determine the number of accessible EVCS.

The table below, provided by the California Division of the State Architect, sets forth these scoping requirements. CONTINUE READING →

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20 November 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.

Today, he shares one of the stranger tales of serial ADA litigation and describes how the judicial system in New Mexico stopped the plaintiff and her lawyer from filing frivolous and malicious ADA lawsuits.
New Mexico Judge Dismisses 99 ADA Lawsuits as Fraudulent and Malicious
Entertains Sanction Motions
by
Martin H. Orlick, Chair, JMBM’s ADA Compliance & Defense Group
On October 26, 2017, a judge dismissed 99 ADA lawsuits, ordered an in forma pauperis plaintiff  (a person without funds to pursue the cost of a lawsuit) to pay filing fees of $38,300 and authorized the defendants to file fee and sanction motions.

Surely, this plaintiff’s lawyer rues the day she answered an ad on Craigslist looking for a civil rights lawyer to file ADA litigation in her jurisdiction.

What’s going on?

A Strange Set of Circumstances

The Arizona-based organization, Litigation Management and Financial Services, Inc. (LMFS), a descendant of the notorious ADA plaintiffs’ group Advocates for Individuals with Disabilities, used Craigslist, indeed.com and other online media to find and engage disabled plaintiffs to file ADA lawsuits, and lawyers to represent them. The online advertisements resulted in hundreds of ADA lawsuits filed against businesses in New Mexico, Nevada, Colorado and Utah.

It is also how a disabled plaintiff and her lawyer came to file 99 ADA lawsuits in New Mexico, alleging each defendant’s business violated the ADA and related anti-discrimination laws.  According to court documents, the deal LMFS made with this plaintiff and her counsel, worked like this:

  • The plaintiff was paid $50.00 per lawsuit filed.
  • The plaintiff’s counsel received $100 per filing for serving as counsel of record for each lawsuit filed.
  • LMFS drafted all pleadings and defended any motion practice in exchange for the lion’s share of any settlements that resulted from the lawsuits.
  • LMFS also arranged for a driver to take the plaintiff to some — but apparently not all — of the businesses that were sued, for a photo-op.

CONTINUE READING →

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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 →

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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 →

Contact Information
Jim Butler, Chairman
Global Hospitality Group®
Jeffer Mangels Butler & Mitchell LLP
(310) 201-3526 • jbutler@jmbm.com
www.HotelLawyer.com

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