Laura Wilcoxen Feb. 10, 2016, 10:31am


PHOENIX (Legal Newsline) - Since the beginning of 2015, three plaintiffs have brought more than 200 lawsuits against Arizona hotels, retailers and restaurants alleging American with Disabilities Act accessibility violations.

One of the three, Theresa Brooke, has filed 151 of the 237 total ADA lawsuits that aren't related to employment. These suits, brought mainly in Arizona by two law firms, allege the defendants' premises aren't in compliance with ADA standards.

Brooke's attorney is Peter Strojnik of Strojnik Firm in Phoenix. Plaintiff Daimeon Mosley has filed 44 lawsuits, and Santiago Abreu has filed 24.

Abreu and Mosley are both represented by Chastain & Afshari in Mesa, Ariz. The complaints allege the defendants' facilities have various ADA violations such as inadequate restroom facilities and checkout counters, as well as the failure of hotels to provide pool lifts.

A plaintiff in an ADA suit may successfully bring a suit against a business for accessibility violations without ever having visited it or attempted to use its services, said Matthew Anderson, a partner at Jaburg Wilk in Phoenix.

Anderson, noting that Arizona federal courts have routinely upheld a minimum threshold allowing a plaintiff to proceed with a complaint if they have suffered an injury that is either “concrete and particularized” — that is, the plaintiff has personally encountered or been affected by an alleged barrier — or “actual or imminent,” meaning that the plaintiff has been deterred from visiting a public place at all because of an alleged barrier.

Anderson also said that the fact that so many complaints are being brought by only three individuals has not been a deterrent to courts in allowing the cases to proceed.

“The courts have not viewed this factor to the plaintiffs’ detriment,” Anderson said.

“In denying Motel 6’s motion to dismiss in one such ADA case, the court held that sometimes it may be 'necessary and desirable' for a disabled individual to file multiple lawsuits in order to give effect to the ADA’s goal of equal access for the disabled.”

Anderson said the lawsuits started against hotels and motels, then progressed to national retailers.

A defendant's strategy must take several variables into consideration, he added.

“It depends on several factors, including verification and degree of ADA non-compliance, potential disruption to business, and potential exposure to the business.” Anderson said. “Each business will have a different internal analysis.”

Anderson advises that businesses faced with an ADA lawsuit can take a number of steps, starting with consulting a knowledgeable contractor or architect to inspect the premises and to correct any discovered violations if doing so will not incur undue burden or cost, noting that the ADA states that full compliance “is a flexible, case-by-case analysis, with the goal of ensuring that ADA requirements are not unduly burdensome, including to small businesses."

Defendants may also challenge plaintiffs by obtaining a deposition by the plaintiff of an intent to return; filing an early offer of judgment so that the plaintiff will have to pay costs if the case is found in favor of the defendant; or by filing a counterclaim for abuse of process.

Anderson cautions that defendants should be aware of the possibility that the state attorney general may investigate their premises when ADA violations are alleged and that counterclaims in ADA cases have traditionally not been successful.

There has been little establishment of legal precedence for businesses to learn from, as ADA compliance cases often do not proceed to trial, he said.

“Most of these cases are settling before they can be resolved on the merits,” Anderson said.

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