Faced with an ever-increasing number of lawsuits filed via the Americans with Disabilities Act (ADA), purportedly stemming from violations of the ADA Accessibility Guidelines (ADAAG), commercial property owners, landlords, tenants, franchisees and franchisors are looking to their lawyers to help them navigate the ADA terrain.  A cursory review of these ADA lawsuits often reveals that the same plaintiff, known as a “tester”, has filed multiple lawsuits with the same attorney against persons who own, operate or lease a place for public accommodation.  These lawsuits have been dubbed “drive-by” because the tester typically only drives-by the property to collect evidence before filing suit.  These “drive-by” lawsuits have become a cottage industry of sorts due to the ease of drafting and ability to file multiple lawsuits in a short period of time, as well as advances in technology, such as online bird’s eye maps, which allow a tester to identify potential ADA violations from the comfort of home.

Drive-by lawsuits often catch a defendant off guard because the lawsuit is the first notice of the alleged ADAAG violation, and in many instances, the violation was an oversight and easily remedied.  However, because the ADA provides for recovery of attorney’s fees, there is little incentive to provide advanced notice to the alleged violator, because if on the receipt of the notice, the violation is remedied, the tester and the tester’s attorney would have no avenue to recover attorney fees.  Although there are some state laws that allow for monetary damages to be recovered by the tester, in addition to attorney’s fees, those statutes generally require advanced notice to the defendant prior to filing a lawsuit.  Therefore, it is a rare instance that a defendant receives notice of potential ADAAG violations prior to the drive-by lawsuit being filed.  To combat this, there have been attempts to amend the ADA in order to require notice to a party prior to filing an ADA lawsuit, which would allow mitigation prior to a lawsuit.  However, such notice proposals have been met with resistance or have simply stalled.

The question then, is what should a party served with a drive-by lawsuit do?  First, the party and its counsel should determine when the property was built and if and when it had since been modified.  If the property was built before the ADA effective date, and has not been modified since, it is possible that the ADAAG does not apply.  The effective date for the ADA violations is January 26, 1992, or January 26, 1993 for small businesses as defined by the ADA.  Also, the ADA only requires removal of barriers in structures built prior to 1990 to the extent it is readily achievable, as well as other standards effected in 1991 and 2010, that could apply, depending on when the facility was built or modified.  Second, the party and its counsel should determine whether the tester has given sufficiently detailed allegations in his or her complaint, and then determine if the allegations are even accurate, as well as whether the tester has standing to bring the drive-by lawsuit.  This analysis includes an examination of the tester’s proximity to the subject property, including past patronage, definitiveness of the tester’s plan to return, and frequency of nearby travel.  Even if the tester does not have standing or the pleading is not sufficiently specific, if the ADA is determined to apply, the party should then proceed to remediate any violations with the goal being to render the tester’s or any other potential tester’s claims as moot.  Once these issues are evaluated with counsel, then a party in receipt of an ADAAG notice or lawsuit will be positioned to develop a winning strategy to resolve the dispute.

Unfortunately, until the laws are changed, the threat of a drive-by ADA lawsuit is a fact of life for most commercial property owners, landlords, tenants, franchisees and franchisors.  However, with the proper counsel and strategy, these lawsuits can be navigated and ultimately resolved in an effective and efficient manner.

No information in this article is intended to constitute legal advice.  For specific legal advice, please contact an attorney.

If you have any questions or would like more information about ADA litigation and compliance, please contact Eric Mettenbrink at 713.220.9141 or emettenbrink@hirschwest.com.