ADA Violations: What to Do If You Are Sued
If your business is sued for violating ADA standards, don’t be too quick to settle a lawsuit that you might be able to win.
UPDATE: On February 17, 2017, a Maricopa
County Superior Court judge dismissed as "frivolous" over 1,000
lawsuits filed against Phoenix-area businesses for alleged ADA
violations. Our original August 2016 article follows.
As though making a profit is not difficult enough in normal
circumstances, many businesses are seeing a relatively new and
growing threat in the form of serial lawsuits alleging violations of
the Americans with Disabilities Act (ADA). News reports and public
records in Maricopa County show hundreds of lawsuits filed in 2016
alleging that the defendant (usually a property owner) has violated
the ADA by failing to have ADA-compliant signs for handicapped
This article appeared in
the August 2016 issue of "The Construction Advisor"
published by Lang & Klain, P.C., and was updated in February 2017
Subscribe to the Construction Advisor
Construction Advisor index
These lawsuits are almost identically worded and are filed by
various similarly named “advocacy” groups.
(View a typical suit,
is also usually served with the suit.) Even though the Arizona
Attorney General has
moved to intervene in these suits, in order to have them
dismissed as groundless and abusive, there is no indication that the
suits will abate in the near future.
If you are a property owner, you may ask:
Is there anything I can do to avoid being targeted by
one of these suits?
If I receive a
letter, should I simply pay the $7,500 typically demanded in
these lawsuits, or should I fight it?
In general, the answers are these:
Yes, you can take steps now to reduce the chances of
falling victim to one of these lawsuits.
If you are sued by one of the ADA advocacy groups, you
should probably fight it.
Typically, the property owner is sued for
technical violations of ADA standards for handicapped parking signs.
These signs were often compliant when installed, but are now
non-compliant because the standards were changed in 2010.
Specifically, these recent lawsuits allege
that the property owner violated the ADA (as well as a similar state statute) by (a) not
placing its handicapped parking signs at a sufficient height and (b)
not indicating that certain spaces are “van accessible.” These
specific ADA standards come from a government document,
2010 ADA Standards for Accessible Design.
These lawsuits take advantage of an apparently little-noticed change
in the 2002 ADA Accessibility Guidelines that the 2010 Standards
replaced. Under the 2002 guidelines, there was no fixed height for
handicapped parking signs. Instead, the signs were required to “be
located so they cannot be obscured by a vehicle parked in the
The same section of the 2002 guidelines also required that the signs
be visible to drivers: “Signs designating parking places for
disabled people can be seen from a driver's seat if the signs are
mounted high enough above the ground and located at the front of a
The 2010 ADA Standards, which became mandatory on March 15, 2012,
require that handicapped parking spaces be at least 60 inches above
the finish floor or ground surface, measured from the bottom of the
This change meant that many handicapped parking signs that met the
2002 ADA Guidelines were now in violation of the 2010 ADA Standards.
Although property owners can often take advantage of a “grandfather”
provision that protects previously compliant signs, such protection
evaporates as soon as a property owner re-stripes its parking lot.
Given this little-noticed technical change, it has been easy for the
advocacy groups to find non-compliant signs. Once the signs are
identified, a lawsuit is filed (apparently without warning or
notice), demanding compliance and seeking attorneys’ fees and costs.
The plaintiff group also typically serves
discovery, demanding answers
to a host of questions about the property owner’s business and
practices relating to parking and other accessibility issues.
If the property owner contacts the plaintiff, the typical response
is to demand compliance and payment of a significant sum, such as
$7,500, as contained in sample complaint linked above. Practical
business owners, faced with the choice of litigation or a quick –
though pricey – settlement, might opt for settlement, which of
course is the likely goal of this batch of lawsuits.
If you own property with handicapped parking spaces, go to your
parking lot and measure the distance between the bottom of the
handicapped sign and the ground or floor. Also check to make sure
you have at least one van-accessible handicapped space, with a sign
to that effect. If the bottom of your sign is less than 60 inches
from the floor or ground, or if you do not have a “Van Accessible”
sign, you are at great risk of becoming the victim of this recent
wave of lawsuits.
A good resource for parking compliance issues is the
Channel 15 News website. But because the ADA covers far more
than just parking lots, you would be well-served to hire a
professional to ensure that your entire property fully complies with
all of the most recent ADA guidelines.
Fighting the Lawsuit
The fact that you might have a non-compliant sign does not mean that
you are automatically liable, or that, even if your business is
liable, an advocacy group plaintiff actually has a valid claim
Even if you raced out to your parking lot and hired a licensed
contractor to bring your signs into compliance, your business may
have already been sued. Do not despair, however, because there are a
number of defenses to these recent lawsuits.
Fixing the Problem. Your first line of defense is to fix any
legitimately identified ADA compliance issues. As noted above, it
would not be surprising that your handicapped parking signs are too
low. The plaintiff has argued (and will continue to argue) that
merely fixing the problems will not make the lawsuit “moot” and
therefore subject to dismissal. However, even if not entirely
successful, your prompt, good-faith effort at compliance should
dramatically reduce your company’s exposure to an award of costs or
attorneys’ fees. (The entity plaintiff apparently does not claim
actual damages, and the typical individual plaintiff – if one is
named – may never have visited your property).
Legal Standing. The second line of defense is to challenge
the plaintiff’s standing. Although these plaintiff groups’
strategies are constantly evolving, typically they allege that one
of their members is handicapped, visited the property, and intends
to visit the property again. If
challenged, the plaintiff may have a hard time making that argument
stick, especially in light of recent news reports suggesting that
the supposedly handicapped individual did not actually have a
Right to Attorneys’ Fees. A third line of defense is to
challenge the plaintiff’s right to recover attorneys’ fees. In the
current wave of lawsuits, sometimes the plaintiff claims that
it is entitled to fees under a state statute that does not apply to
cases filed by private individuals.
Insurance Coverage. There is hope that certain insurance
policies may cover these ADA claims, both to provide a defense and
potentially to cover some or all of any ultimate award. The most
promising avenue for coverage appears to be Third Party Coverage
under an Employment Practices Liability policy; however, little case
law exists on this very new coverage issue, so it is impossible to
predict with certainty whether coverage exists.
In any event, if you decide to fight the suit, and if your business
is a corporation or an LLC, you must have a lawyer represent the
entity in Superior Court. Unless you are an attorney, you cannot
represent the company, and, if you try, you are likely to face a
ADA compliance is important legally, and important to a decent and
inclusive society. But laws passed with the best of intentions can
be misused, which is what is happening now with these serial
lawsuits aimed at unknown and easily corrected violations.
Avoid being a victim of an abusive lawsuit by bringing your parking
lot, and the rest of your facility, into ADA compliance as soon as
possible. If, despite your best efforts, you are sued by one of
these plaintiff groups, do not assume that your only option is to
pay an extortionate sum to avoid litigation. Consult a lawyer right
away to see what defenses you have, and also to see what options are
currently (and may become) available given the recent actions of the
Arizona Attorney General’s Office. Finally, notify your insurance
carrier immediately after receiving a demand or a lawsuit.
 These groups include: “Advocates for
Individuals with Disabilities Foundation, Inc.,” “Advocates
for Individuals with Disabilities, LLC,” and “Advocates for
American Disabled Individuals, LLC.” As of this date, only
the first two of these entities are authorized to do
business in Arizona, and it is not clear that the third
entity even exists, in Arizona or elsewhere.
 At the time this article was written,
the Attorney General’s motion to intervene had not yet been
 ADA Accessibility Guidelines § 4.6.4.
 2010 ADA Standards § 502.6.