Julie Mills, a Columbus, Ohio attorney whose blog appears in my blogroll, brought to my attention in a linked in group that we are both members of (ADA for Attorneys, Architects, and Access Professionals), a case which discusses several key issues under title III of the Americans with Disabilities Act. That case is Parr v. L & L Drive-Inn Restaurant, 96 F. Supp. 2d 1065 (D. Haw. 2000). In that case, the plaintiff, who was mobility impaired, filed suit alleging that the defendant violated title III of the ADA by failing to remove architectural barriers to access. Ultimately, the court decided in favor of the plaintiff on most of his claims as the court found that it was readily achievable for the defendant to fix just about all the problems. In reaching that conclusion, the court had several issues before it. They were in no particular order: 1) Does title III require exhaustion of administrative remedies prior to filing suit?; 2) Can a plaintiff’s sue for violations of the ADA where those violations are not related to his or her disability?; 3) For purposes of being able to obtain injunctive relief under title III, what does actual notice to the plaintiff mean?;and 4) Is good faith a defense to a title III action?

With respect to exhaustion of administrative remedies prior to filing suit under title III of the ADA, (we have discussed that one before), as mentioned in that blog entry, only one judge is holding that exhaustion of remedies is required for non-title I claims. Parr also agrees with the majority by saying that the ADA does not incorporate the section of the Civil Rights Act that would require such notice. That is, title III of the ADA expressly incorporates 42 U.S.C.A. §2000a-3(a) and not 42 U.S.C.A. § 2000a-3(c), which is the section with the notice requirement. See id. at 1077.

With respect to the second issue, the court found that a plaintiff cannot sue for violations of the ADA where those violations are not related to his or her disability. The plaintiff had argued otherwise, but the court wasn’t buying it for several reasons. First, for the plaintiff to be able to pursue a claim, there must be an injury in fact, which requires that the party himself or herself be among the injured. Id. at 1082. In other words, the plaintiff must have suffered a distinct injury to himself that is likely to be redressed if the requested relief is granted. Id. Second, since a person could not be injured by a barrier not related to his disability, the possibility of reinjury, which is necessary to get injunctive relief, does not exist. Id. at 1083. Finally, the court cited to a case stating a person with a disability cannot vindicate the rights of people with disabilities generally, rather that is for the Department of Justice to do. Id. That particular statement may not be a correct statement of the law anymore, nevertheless, as a practical matter, for reasons we have discussed in a prior blog entry, it may not be far from the mark even if it is not literally correct.

With respect to the actual notice issue, this is not an issue that you readily think of. However, it is nevertheless there. Another colleague of mine, Richard Hunt, a Dallas Texas attorney, who is the author of a blog on the fair housing act and issues relating to title III of the ADA that can also be found on my blogroll, has been discussing this issue quite a bit in the abovementioned LinkedIn group- ADA for Attorneys, Architects and Access Professionals mentioned above-that we are both members of. In particular, 42 U.S.C.A. § 12188(a)(1) says that a private action under title III is available to any person being subjected to discrimination on the basis of disability. 42 U.S.C.A. § 12188(a)(1). That same section goes on to say, “Nothing in this section shall require a person with a disability to engage in a futile gesture if such person has actual notice that a person or organization covered by this subchapter does not intend to comply with its provisions.” Id. The question is what does it mean to say, ” if such person has actual notice that a person or organization covered by this subchapter does not intend to comply with its provisions?” Does that mean or should it mean that the defendant must receive notice prior to being sued by the plaintiff or does it mean something else? The Parr court said that it meant something else for several different reasons. First, discrimination occurs as soon as plaintiff encounters an architectural barrier. Parr 96 F. Supp. 2d at 1081. Second, once plaintiff encounters discrimination or learns of the alleged violations through expert findings of personal observation, he has actual notice that the defendant does not intend to comply with the ADA. Id. Third, the ADA is meant to be read broadly. Id. at 1081-1082. Fourth, the court noted that the ADA covers the discriminatory effects of benign neglect, apathy and indifference , and that Congress did not intend to limit the ADA’s protection from discrimination to circumstances involving deliberate discrimination. Id. at 1084. Finally, the court noted that Congress delayed the effective date of title III of the ADA (1992 was the effective date; It is now of course 2013), to allow businesses to learn about the ADA and to voluntarily comply. Id.

With respect to the final question, good faith with respect to reasonable accommodation process, is a defense to a full on damages claim under title I of the ADA. 42 U.S.C.A. § 1981A(a)(3). However, under title III of the ADA good faith only comes up in civil action brought by the Department of Justice when considering the amount of civil penalty and there is no other mention of good faith within title III of the ADA. Parr 96 F. Supp. 2d at 1084.

So where does this leave us. First, for title III matters, it is not necessary to exhaust administrative remedies. Second, a person with a disability alleging violations of the ADA, and I would say regardless of title, is going to be able to sue only for violations related to his or her particular disability. As mentioned previously, there is the possibility of class action suits, but that is going to be very difficult to pursue. Third, with respect to actual notice, while it is true that this court said simply encountering the barrier related to his or her disability is actual notice that the defendant did not intend to comply with the ADA and that the ADA has been around a long long time so as to give people time to get themselves into compliance, an argument (my colleague Richard Hunt has made this argument in the above-mentioned LinkedIn group), can be made that actual notice to a plaintiff of a defendant refusing to comply with the ADA means something more than just encountering the barrier. To date, no courts that I am aware of has accepted this argument, but I wouldn’t be surprised to see that argument made. Fourth, unless a civil penalty is involved, good faith is generally not a factor in title III situations. Finally, it always pays to remember, that it simply may be a better plan, as we have discussed previously, to fix the issue rather than pay all the legal fees associated with contesting this.

2 Responses to Issues to be aware of under title III of the ADA

Excellent discussion of Parr and its various holdings, many of which were prescient. I am fascinated by the concept of discrimination that instantly occurs when a person with a disability encounters an architectural feature that might be a barrier. The statute requires, for discrimination, that a disabled individual be denied the full use and enjoyment of a facility by an architectural barrier whose removal is readily achievable. Architectural barrier is not defined and “readily achievable” and the denial of full use and enjoyment depends on the specific facts of each case, including in part on the individual financial condition of the owner or operator.

Assume, for the sake of argument, that a marginally profitable convenience store built before 1991 with a very narrow parking lot has no ramp for a person in a wheelchair. It turns out, after the owner is sued, that construction of a ramp is complicated by the odd layout and terrain so that it will cost an amount equal to two year’s revenue. It is fair to say under these circumstances removal of the barrier is not readily achievable. The owner wins because there has been no discrimination.

The next year the store is purchased by a chain of liquor stores. Once stocked it is fabulously successful with revenues hundreds of times the amount of the cost of the ramp. The same plaintiff sues and this time wins because now removal of the barrier is readily achievable and there has been discrimination.

It is absurd to claim in case 1 that the plaintiff suffered discrimination as soon as he pulled into the parking lot and saw there was no ramp. After all, he lost, which means he didn’t suffer any discrimination at all. But if discrimination depends on later fact findings it is incoherent to claim that discrimination occurs when the plaintiff encounters the alleged barrier.

What about the middle case, where the store makes enough money that it might or might not be able to afford the ramp. Summary judgments on both sides are denied and the Court decides that readily achievable is a fact issue and will be decided at trial. Does the judgment after trial somehow magically relate back to the moment when the plaintiff pulled into the parking lot? Is discrimination like Schroedinger’s cat, existing in some sort of suspension between existence and non-existence until the court rules on whether removal was readily achievable?

The same argument applies to denial of the full use and enjoyment of the facility. Whether or not the plaintiff was denied the full use and enjoyment is a fact issue with the plaintiff having the burden of proof. If the court finds against him it cannot have been the case that the original encounter with the alleged architectural barrier was discrimination. In fact, it wasn’t even a barrier.

Parr and similar cases attempt to avoid these serious conceptual difficulties by assuming that any feature out of compliance with the ADAAG or 2010 Standards constitutes an architectural barrier. They stereotype those with disabilities by dividing them into classes (vision disabilities, hearing disabilities, mobility disabilities) and assume that a member of such a class will not have the full and equal enjoyment of a facility as a result of every discrepancy with a standard related to that person’s disability. This still doesn’t deal with the “readily achievable” element of discrimination, but Parr and other courts appear oblivious to the disconnect between saying that discrimination occurs when a disabled person encounters a barrier whether or not its removal is readily achievable when in fact there is no discrimination at all if it is not readily achievable.

In the end what Parr and many similar cases require is that every property owner who is not the original owner of a post-1991 property survey it for “architectural barriers,” guess what amount of money or other conditions a future court will believe make removal not readily achievable, and then remove the “architectural barriers” if it can do so, or thinks it might be compelled to do so. If this is what Congress wanted, why, one might ask, didn’t it say so? I believe it didn’t say so because it wanted to honor the claim of the disabled community that they should be treated as individuals, not as stereotyped members of a class, and because it wanted to create an enforcement structure in which individuals represented their own particular right to be free of discrimination rather than one in which individual plaintiffs sued, in essence, on behalf of everyone with their stereotyped class of disability.

Here is another issue that is related to the ones discussed above. That is, does title III of the ADA require pre-suit notice? Richard Hunt has commented both here and in his own blog, can find his blog on my blog roll, that policy reasons exist for requiring such a notice. That may be, but does the ADA under title III require such a notice? Even if it doesn’t, could you argue that attorneys fees should be conditional upon receipt of such notice? The answer to both of these questions are no and no. In Ashley v. Zaharopoulos Properties, 2013 WL 3422906 (E.D. Ark. July 8, 2013), an attorney specializing in suing businesses for ADA noncompliance sued two related restaurants with owners in common. A consent decree was entered into and the plaintiff’s attorney brought suit seeking attorneys fees, expert witness costs and other costs. The defense said that attorneys fee should be denied because if they had received a pre-suit notification, they would have gladly made the changes. The court said that the ADA does not require notice or attempted conciliation before a lawsuit is filed and it expressly declined to engraft such a requirement onto the ADA in the guise of attorneys fees. The approach of the defense in this case is very creative, but the court decided to enforce the ADA as written.

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