As a previous post discussed, there has been an influx of lawsuits against business owners, alleging violations of the Americans with Disability Act (ADA). These lawsuits are filed by a small number of attorneys and on behalf of a small number of “victims” or so called “testers”. These lawsuits are filed against large and small businesses alike, alleging non-compliance with the ADA; everything from the size of a restroom stall to the number of handicap parking lots.
These ADA lawsuits have been filed both in federal and state courts by the thousands. Although there is little the Attorney General can do regarding the federal lawsuits, he is attempting to stop what he has described as, “trolling litigation”. These ADA lawsuits have received criticism from outside court observers because it appears to be nothing more than a “shake down”. The plaintiff usually sends a letter to the business, detailing the non-compliance issues, and gives the business owners thirty days to get into compliance. Many businesses, especially smaller mom and pop businesses, simply do not have the resources nor the amount of time necessary to get into compliance in that short amount of time.
The out-of-town and self-described “testers” will visit a business and look for potential ADA violations, followed up by submitting a report to their attorney. The attorney will file a lawsuit and in most cases, the lawsuit will end in a quick pre-suit or post-complaint settlement that enriches the plaintiff. Many pundits feel these kinds of lawsuits, which rely upon the ADA, does the ADA an injustice. Although all business should be in compliance with the ADA, using the protection it offers to enrich a “tester” and his or her attorney was not the intention of the legislators who passed ADA.
Late in August 2016, The Arizona Attorney General’s Office filed a motion to intervene on one of the many pending ADA cases and plans to ask for the 1,000-plus lawsuits in the Superior Court be consolidated in one action. Once consolidated, The Attorney General’s Office will seek to have all of the cases dismissed. This attempt by the Attorney General’s Office will have little effect on the pending federal cases, but can be the end of the road for ADA “tester” cases on the Superior Court.
If you have any questions or have received a notice from one of these attorneys, don’t hesitate to contact my office.
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