Low hanging fruit for professional disabled plaintiffs: Breaking down the structure of an ADA lawsuit- Part 2

Last month I shared with you a story about a disabled marine business owner in the Bay area that was one of the latest targets of a professional plaintiff because the landlord was negligent in keeping the parking lot maintained.

A $5,000 maintenance repair turned into a $90,000 kick-in-the-teeth for both the landlord and the tenant shop owner.

Part 1 was the breakdown of the claims brought against both parties and described in detail how a professional plaintiff can start with as little as two “alleged violations” at first but then turns it into a full property “colon exam” with four times as many violations when all the dust settles.

In this post, I'll share the second half of this ADA lawsuit.

Here is how it breaks down: This particular suit has three claims and a Prayer For Relief.

Claim 1: Claim 1 addresses the ADA requirements:

1)    Denial of “full and equal” enjoyment and use of the facilities by a disabled person. Title 3 of the ADA holds as a “general rule” that no individual shall be discriminated against on the basis of their disability.

2)    Failure to remove architectural barriers in an existing facility.

(a) ADA specifically prohibits failing to remove architectural barriers, which are structural in nature, in existing facilities where such removal is readily achievable.

(b) When an entity can demonstrate that removal of a barrier is not readily achievable, a failure to make goods, services, facilities, or accommodations available through alternative methods is also specifically prohibited if these methods are “readily achievable.”

(c) Here, plaintiff alleges that Defendants can easily remove the architectural barriers at the facility without much difficulty or expense, and the Defendants violated the ADA by failing to remove barriers, when it was readily achievable to do so.

(d) In the alternative, if it was not “readily achievable” for Defendants to remove the facility’s barriers, then Defendants violated the ADA by failing to make the required services available through alternative methods, which are readily achievable.

3)    Failure to design and construct an accessible facility. Plaintiff believes that the facility was built after January 26th, 1992-independently triggering access requirements under Title 3 of the ADA.

4)    Failure to make an altered facility accessible. Plaintiff alleges on information and belief that the facility was modified after January 26th, 1992, independently triggering access requirements under ADA. Defendant has altered the facility in a manner that violated the ADA and was not readily accessible to the physically disabled public-including plaintiff-to the maximum extent feasible.

5)    Failure to modify existing policies and procedures. The ADA also requires reasonable modifications in policies, practices, or procedures, when necessary to afford such goods, services, facilities, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter their nature.

Claim 2: Claim 2 addresses the California UNRUH ACT: This is a California law that basically brings all California access code violations up to the same level of penalty as an ADA civil rights violation.

1)    California Civil Code 51 which states that all persons in this state are entitled to full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.

2)    California Civil Code 51.5 that no business establishment of any kind shall discriminate against any person in this state because of the disability of the person.

3)    California Civil Code 51(f) specifically incorporates (by reference) an individual’s rights under the ADA into the Unruh Act.

4)    Defendants’ aforementioned acts and omissions denied the physically disabled public full and equal accommodations, advantages, facilities, privileges and services in a business establishment (because of their physical disability).

5)    These acts and omissions (including the ones that violate the ADA) denied, aided or incited, or discriminated against plaintiff by violating the Unruh Act.

6)    Plaintiff was damaged by Defendant’s wrongful conduct, and seeks statutory minimum damages of four thousand dollars ($4,000) for each offense.

7)    Plaintiff also seeks to enjoin Defendant’s from violating the Unruh Act (and ADA), and recover reasonable attorneys’ fees and costs incurred under California Civil Code 52(a). This is where it gets even better.  Not!!

Claim 3: Denial of full and equal access to public facilities:

1)    Plaintiff incorporates the allegations contained in Claim 1 and 2 for this claim.

2)    Health & Safety Code 19955(a) states, in part, that: California public accommodations or facilities (built with private funds) shall adhere to the provisions of government code 4450.

3)    Health & Safety Code 19959 states, in part, that: Every existing (non-exempt) public accommodation constructed prior to July 1st, 1970, which is altered or structurally repaired, is required to comply with this chapter.

4)    Plaintiff alleges the facility is a public accommodation constructed, altered, or repaired in a manner that violates part 5.5 of the Health and Safety Code or Government Code 4450 (or both), and that the facility was not exempt under Health & Safety Code 19956.

5)    Defendants’ non-compliance with these requirements at the facility aggrieved (or potentially aggrieved) Plaintiff and other persons with physical disabilities. Accordingly, Plaintiff seeks injunctive relief and attorney fees pursuant to Health & Safety Code 19953. 

Prayer For Relief: WHEREFORE, Plaintiff prays judgment against defendants, and each of them, for:

1)    Injunctive relief, preventive relief, or any other relief the Court deems proper.

2)    Declaratory relief that the defendants violated the ADA for the purposes of the Unruh Act damages.

3)    Statutory minimum damages under section 52(a) of the California Civil Code according to proof.

4)    Attorneys’ fees, litigation expense, and costs of suit.

5)    Interest at the legal rate from the date of the filing of this action.

6)    For such other and further relief as the court deems proper.  

So lets recap this entire suit to really understand what is going on.

1)    Part 1 reminds us all how merely neglecting our properties can invite in a professional plaintiff in the blink of an eye. The fact that the landlord neglected the property and inadvertently brought this unwanted attention into his tenants business is very unfortunate.

2)    The Plaintiff identifies just a handful of “low hanging fruit” violations or more importantly all readily achievable items. This is important to remember. They go after the “readily achievable” items first then once they have filed suit, they have the right to return to the property to find EVERY violation that affects the plaintiffs’ disability. Scary huh?

3)    Plaintiff drives home the point that the defendant “knew or should have known” that the barriers existed and that the defendant has possessed and controlled the property for many years and still refuses to remove such barriers- thus making this an intentional act to establish the defendants “discriminatory intent”.

4)    Plaintiff then brings in the codes and laws violated in the Claims portion.

5)    Violating the ADA and the general rule for all public accommodations.

6)    Failing to remove barriers in an existing facility when it is found or thought to be readily achievable.

7)    And if the defendant disagrees with the notion that the barriers are not readily achievable to remove then the defendant is still in trouble because they did not provide alternate means of providing their goods and services. Either way, the defendant is screwed here!

8)    The California Unruh Act which automatically converts any state access code violation into a Civil Rights violation under the ADA.

9)    Violation of the Health & Safety Code 19955(a) states that any public accommodation must adhere to the Government Code 445010). Any non-exempt public accommodation built prior to July 1st, 1970, which has been altered or structurally repaired must comply with this section.

So, if you are in a building that provides goods, services or accommodations to the public and this building was built prior to July of 1970, and has had some alterations or structural repairs it must provide access to the disabled.

Even if the building hasn't had any repairs done, the Federal ADA on-going readily achievable barrier removal clause is in effect at all times regardless of any “trigger event” requiring the 20% additional ADA.

ADA lawsuits are, at best, painful - both financially and mentally! At worst! They are a nightmare and can ruin a business! You can avoid every bit of it! Give us a call and let us help you!