ADA Lawsuits: Just When You Thought It Was Safe to Go Back into the Parking Lot
One important thing a business can do
to avoid certain types of ADA lawsuits is to
bring its parking lot into compliance with the 2010 ADA Standards for Accessible Design.
Over the last few years, a Phoenix lawyer,
Peter Strojnik, filed over 1,700 lawsuits in state court against
small businesses in Arizona under the Americans with Disabilities
Act (ADA) and its Arizona counterpart – almost entirely for alleged
problems with handicapped parking spaces and signs. (See our related
Violations: What to Do if You Are Sued.”)
This article appeared in the February
2018 issue of "The Construction Advisor" published by Lang &
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While those parking lot actions have been
stopped for the moment, two recent developments threaten a new form
of disability litigation against small local and out-of-state
The first development is that Mr. Strojnik
is filing a flood of new lawsuits – against hotels – alleging a wide
range of ADA violations. He has even filed lawsuits against
out-of-state hotels, based solely on the content of the hotels’
websites and of third-party websites such as Expedia.com. He does
not even allege that his client ever visited the hotel – rather, he
claims that his client was “deterred” from doing so by an alleged
lack of information on these websites.
The second development is that this lawyer
is trying to restart the parking lot cases in state court, based on
a 2017 U.S. Ninth Circuit Court of Appeals decision that he believes
allows him to set aside the dismissal of those lawsuits.
The renewed litigation resulting from these
developments could prove very costly to small businesses.
Prior Parking Lot Lawsuits
The prior lawsuits were filed in state court
against over 1,700 businesses on behalf of an individual named David
Ritzenthaler and an organization named Advocates for Individuals
with Disabilities (AID).
Those suits alleged that parking lot signs
and markings did not comply with the ADA and, by extension, Arizona
disability laws. Numerous reports indicated that the property owners
received a form settlement letter demanding $7,500, much of which
supposedly represented attorneys’ fees incurred to investigate the
alleged violations and draft the lawsuit.
But the lawsuits were copied word for word
from the same template, casting doubt on the notion that the
plaintiffs could have incurred thousands of dollars in attorneys’
fees merely for filing the same cookie-cutter complaint.
The parking lot ADA cases garnered a great
deal of scrutiny in the media and elsewhere, which ultimately led to
action by the Arizona legislature and Attorney General’s Office that
put a halt to these parking lot cases, for now.
Changes in State Law Affect Parking Lot
The first blow to the serial filings was a
change in Arizona law. In response to the wave of parking lot
lawsuits, the legislature amended Arizona’s disability laws to
require plaintiffs, before filing suit, to give defendants notice
and an opportunity to cure any alleged violations of the state law.
This seemingly innocuous requirement destroyed the ability to file a
disability lawsuit in state court without warning and demanding a
large amount of attorneys’ fees. Hence, in lawsuits filed in federal
court, Mr. Strojnik characterized this statutory change as
“completely neuter[ing]” the state disability statutes.
Arizona Attorney General Takes Action
The second blow was action by the Arizona
Attorney General’s Office. The AG’s Office successfully consolidated
the 1,700 state court parking lot cases and obtained dismissal of
them for lack of standing, because there was no evidence that the
plaintiffs actually encountered the alleged barrier to access (e.g.,
a too-low parking lot sign or a misplaced access ramp).
In late 2017, as part of a deal to avoid
sanctions, the plaintiffs and their lawyer in those cases agreed not
to file any more lawsuits in state court for violations of state or
federal disability laws. But this agreement is in jeopardy.
Parking Lot Plaintiffs Seek to Undo
In January 2018, the parking lot plaintiffs
filed motions to try to set aside the judgments of dismissal. They
argue that an August 2017 U.S. Ninth Circuit Court of Appeals
decision changed the law on standing, such that the April 2017
dismissal of their lawsuits should be set aside. The AG’s Office
contends that the filing of those motions violated the 2017
settlement by the parking lot plaintiffs.
This matter is currently being litigated. If
the parking lot plaintiffs succeed, they not only will be able to
set aside prior dismissals but could be free to file more parking
New Lawsuits Filed Against Hotels in Federal
Court by Two New Plaintiffs
Starting around July 2017, a new batch
of disability lawsuits were filed by Mr. Strojnik on behalf of a
different plaintiff, Fernando Gastelum. The lawsuits were filed
against Phoenix-area hotels, almost all of which are locally owned
franchises of national hotel chains. As with the parking lot
lawsuits, the complaints in the new actions are cookie-cutter
pleadings, employing dozens of identically worded allegations.
Mr. Gastelum’s lawsuits allege that he
visited Expedia.com and the hotel chain’s website and that neither
website describe the hotel and any handicapped-accessible rooms “in
enough detail to reasonably permit Plaintiff to assess independently
whether Defendant’s hotel and guest rooms meets his accessibility
needs.” (Notably, none of these lawsuits have yet named Expedia as a
Although not referenced in the complaint,
the quoted phrase is taken from federal regulations that apply to
hotels. Specifically, 28 C.F.R. § 36.302(e)(1)(ii) requires that
places of lodging
“[i]dentify and describe accessible features
in the hotels and guest rooms offered through its reservations
service in enough detail to reasonably permit individuals with
disabilities to assess independently whether a given hotel or guest
room meets his or her accessibility needs.”
Mr. Gastelum alleges that this regulation
required the websites to provide specific disclosures on 33 separate
categories of accessibility features. The list of features is
identical in every lawsuit.
Mr. Gastelum then alleges that he visited
the hotel to determine whether it met his accessibility needs and
found various shortcomings in the parking lot and often inside the
hotel as well. He alleges claims under the ADA (but not under its
Arizona counterpart), as well as common-law theories such as
negligence and fraud. At this time, about one hundred of these suits
have been filed. Many have been settled, but some are being actively
Out-of-State Hotels Sued for Alleged Website
On behalf of a different plaintiff (Angelica
Damiano, Mr. Gastelum’s sister), Mr. Strojnik has sued three hotels
in Gallup, New Mexico. Those lawsuits allege only that the Expedia
and hotel chain websites violate the ADA; no violations at the
hotels themselves are alleged. However, from our experience we
believe that the intent of the suits is to force the defendants to
conduct their own investigations of their hotels and then report
their own violations (if any), which would then presumably be added
to the lawsuit.
What You Can Do
By far, the most important thing a business
can do is immediately bring its parking lot into compliance with the
most recent standards, the
2010 ADA Standards for Accessible Design (“2010 Standards”).
Depending on what work has been done to the property after the March
15, 2012, effective date of the 2010 Standards, the standards may
not technically apply. However, so far, each lawsuit assumes that
the property is covered by the 2010 Standards. Therefore, if one of
the plaintiffs or their investigators visits your parking lot, you
will very likely be sued for any perceived violation of the 2010
One quick item you can check is the height
of the handicapped parking signs. If the bottom of these signs is
not at least 60 inches above the ground, that is a violation of the
2010 Standards and shows that the parking lot was not designed to
comply with the 2010 Standards.
Hotels face unique challenges from these
lawsuits. Typically, the franchise owner has little if any control
over the information presented on third-party websites or on the
hotel chain website. But this fact has not prevented the franchise
owners from being sued for those websites’ alleged deficiencies.
Many legal defenses exist to these claims,
including the requirement that the plaintiff intends to return to
the property in question. Out-of-state property owners sued in
Arizona can also raise jurisdiction defenses.
You should also check your insurance
coverages. Some business owners have had some success in tendering
their defense to their insurance company. Coverage will depend on
your policy terms as well as on how your particular insurer views
Our office has defended a property owner
sued for alleged ADA violations and has been monitoring the progress
of these actions. If your hotel has been sued by one of the serial
plaintiffs associated with these disability lawsuits, I invite you
to call me, at no charge, to discuss your options. We also can
discuss bringing your property into compliance with the ADA
requirements, whether or not you have been sued.
 Attorneys’ fees are often recoverable in disability