DEFENSE OF SERIAL ARIZONA ADA LAWSUITS
The Americans with Disabilities Act (the “ADA”) and Arizona Disability Act (“AzDA”) broadly protect the rights of individuals with disabilities in employment, access to state and local government services and places of public accommodation. They were meant to prohibit exclusions and segregation of individuals with disabilities and denial of equal opportunity enjoyed by others. The overall noble purpose of these statutes has been perverted.
The press has reported that over 1,000 cases have been filed against businesses in Arizona by a serial plaintiff (Advocates for Individuals with Disabilities Foundation, Inc) seeking compliance with the ADA and AzDA. Most of the cases relate to technical violations where the handicapped parking spaces are not properly marked, or that the language of the handicapped parking signage is inadequate or signage is not the right height, or improper van accessibility. Many of these lawsuits have been filed despite the fact that signage and handicapped parking spaces were compliant with applicable rules and regulations at the time of construction.
The current regulations are based on the 2010 ADA standards for Accessible Design. The Civil Rights Division of the US Department of Justice has set forth detailed parking standards relating to accessible parking spaces, accessible van parking spaces. For instance, handicapped signs must be marked with an international symbol of accessibility and mounted 60 inches above the ground, and the width of parking spaces must be measured to the inch.
The societal question is: are there any limits to the scope and breadth of the ADA and AzDA, their rules and regulations, and how can a business that has no knowledge of any violation defend itself?
All litigation is expensive, and litigation against a highly motivated party or well-resourced litigant is expensive and generally disappointing because of the expense and outcome. What does the business do? It must react in a cost-effective way and not only deal with the lawsuit filed against it, but must undertake a broader review of the public policy issues related to serial litigation in technical violations of one of the ADA and AzDA rules.
Individual litigants cannot afford to win the case, much less lose it. The press has reported that the Arizona Attorney General’s Office has filed a motion to intervene on behalf of the State in Maricopa County Superior Court in an ADA case brought by Advocates for Individuals with Disabilities Foundation. Intervention by the Attorney General’s Office is a welcome sign that highlights the general public importance of these issues.
Rather than a singular litigation approach, a more global approach is required. Traditional defenses to the ADA and AzDA, such as challenges to a plantiff’s standing, safe harbor defenses, past compliance, etc., may be too expensive, and a broader approach must be explored. If the complaint deals with other than parking and striping issues, costly structural changes may be required.
Therefore, the challenge is to formulate a cost-effective defense of ADA and AzDA litigation, not just on a one-by-one case, but on a broader basis.
Lat J. Celmins
Disclaimer: This is for information purposes only. Legal advice is provided only through a formal, written attorney/client agreement