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.