Case Dismissed: Judge Rules that Plaintiff's Pool Lift ADA Cases Have No Place in Federal Court
Lexology
In the latest decision against an Arizona “high frequency ADA litigant”, the United States District Court for the Central District of California ruled this week that cases like Brooke vs. Perry Family Trust, et al. have no place in Federal Court.
The plaintiff, Theresa Brooke, has filed hundreds of identical ADA lawsuits against Arizona and California hotels, including a half-dozen suits last week. The plaintiff, a disabled resident of Arizona, contends that she was discriminated against by hundreds of hotel owners based on her disability. She claims that these hotels violated the 2010 ADA Standards because they fail to provide permanent pool lifts at either or both the pool and spa.
In each case, Brooke alleges she called the hotels to “inquire whether the pool or Jacuzzi had a lift or other means of access for disabled persons” and the representative informed her that it did not. Plaintiff then alleges she sent her “agent” – “an expert in ADA accessibility guidelines” – to visit the hotel, take pictures of the barriers and report back to her. Plaintiff claims she frequently visits or intends to visit the area “in the coming months and for the indefinite future” for leisure and business.
In dismissing the lawsuit, the judge found that the plaintiff failed to allege she actually visited the hotel – in fact it was clear from the complaint that she had not – and therefore did not actually encounter any barriers that discriminated against her. The Court dismissed the lawsuit, including the state law damage claims.
Plaintiff’s counsel will boast that there are no defenses to his lawsuits. However, those who oppose them are often successful. In one of our cases, the judge dismissed the lawsuit for the same reasons.
We understand it is often cheaper and easier to pay tribute to settle the lawsuits. However, for those who pursue a more aggressive position, they can prevail. With a proper litigation strategy, these types of cases can be won. All hotel owners and operators need to know that these cases can be won without substantial cost.
Disability rights group sues Uber over wheelchair access
India.com
A Chicago disability rights group sued Uber Thursday over wheelchair accessibility, arguing that the mobile ride-hailing company's adherence to federal disability laws "ranges from token to non-existent" despite its expanding role in the nation's transportation system.
Federal judge rules against ADA lawsuit, lawyer
East Valley Tribune
A federal judge imposed sanctions against a controversial attorney and his co-counsel, citing their “bad faith behavior” in their dealings with a defense attorney after they filed a “boilerplate” suit accusing a property company of violating the federal Americans with Disabilities Act.
Attorney sues Go-Mart for ADA violations
West Virginia Record
West Virginia Attorney Duane J. Ruggier II is suing Go-Mart Inc. after he claims it violated the Americans With Disabilities Act.
On Aug. 21, Ruggier visited the Go Mart location in Ivy Dale and encountered barriers, both physical and intangible, that interfered with his ability to use and enjoy the goods, services, privileges and accommodations offered at the facility, according to a complaint filed Sept. 27 in the U.S. District Court for the Southern District of West Virginia.
Ruggier claims the barriers at the facility included the placement of a large toilet paper dispenser in the restroom above the side wall grab bar with an outlet significantly less than 12 inches above the grab bar, which violates the standards of the ADA.
The plaintiff, who has multiple sclerosis and uses a power wheelchair, was deterred from visiting the establishment because he knew that the establishment’s goods, services, facilities, privileges, advantages and accommodations were unavailable to physically disabled patrons such as himself, according to the suit.
Ruggier claims the defendant knows that its failure to comply with the ADA and the West Virginia Human Rights Act significantly interferes with the ability of the physically disabled to access its facility in violation of state and federal law.
The defendant has the financial resources to remove the barriers and make the establishment fully accessible to the physically disabled and, to date, has refused to modify its facility to afford him and others reasonably accommodation when making such modification will not fundamentally alter the nature of the defendant’s business, according to the suit.
Ruggier is seeking injunctive relief and affirmative action sufficient to remedy the discriminatory conduct; declaratory relief finding that the defendant violated the ADA and WVHRA; judgment for incidental damages; and punitive damages with both pre- and post-judgment interest. He is being represented by Thomas H. Peyton of Peyton Law Firm PLLC.
U.S. District Court for the Southern District of West Virginia case number: 3:16-cv-09160
Man sues Thornhill Automotive for ADA violations
West Virginia Record
A man is suing Thornhill Automotive Inc. after he claims it violated the Americans With Disabilities Act.
Thornhill Group Inc.; Thornhill Group Inc.; and John Doe were also named as defendants in the suit.
Shane Frye the Americans With Disabilities Act defines drug addiction as a disability and the defendants violated the ADA by enacting a policy that current employees and potential qualified employees who had a disability were terminated or rejected from employment, according to a complaint filed in Mingo Circuit Court in April and removed to federal court on July 5.
Frye claims he was hired in November 2015 and was forced to participate in drug screenings.
When he testified for a legal drug that was prescribed to combat his addiction, his employment was immediately terminated, according to the suit.
Frye claims the defendants cited its policy that it refuses to employ anyone with a drug addiction disability, which violates the ADA.
The plaintiff, as well as all other similarly situated individuals who worked for the defendant corporations or applied to the defendant corporations have been harmed by the defendants’ policy, according to the suit.
Frye claims the defendants’ actions also violated the West Virginia Human Rights Act.
Frye is seeking compensatory damages with pre- and post-judgment interest. He is being represented by D. Adrian Hoosier II of Lord Hoosier PLLC.
U.S. District Court for the Southern District of West Virginia case number: 2:16-cv-06007
Mark Lacek's new venture focuses on ADA-compliant websites
Minneapolis Star Tribune
Mark Lacek, founder of marketing agencies The Lacek Group and Denali, has started Accessible360, a several-employee firm that works so far with 10 client companies to make sure their websites are accessible to Americans with impaired vision, hearing or cognitive disabilities.
This in advance of rules expected by 2018 from federal regulators on website compliance under the 26-year-old Americans with Disabilities Act, or ADA, which regulates barriers to physical access. Lacek said multiple courts as well as the U.S. Department of Justice have held that the ADA also applies to websites, requiring them to be accessible to all.
Although Justice has not issued definitive rules, multiple DOJ publications and settlement documents suggest that the proper standard by which to measure website compliance with the ADA are the so-called Web Content Accessibility Guidelines.
Accessible360, which isn’t the first of these types of businesses, audits websites for compliance, makes repairs to restore usability and monitors sites for ongoing issues. Accessible360 also provides training and guidance to “bake accessibility” into the technology design process, so it just isn’t a one-time event, Lacek said.
“Many of us will face different disabilities — vision loss, hearing loss, changes in mobility — as we age,” said co-founder Michele Landis.“We are all what the disability community refers to as TABs — temporarily able-bodied. Our consultancy can step in as a third-party partner for any business.”
Clients include AM Retail Group, which represents Wilsons Leather and G.H. Bass & Co.
Lacek, 60, 30 years ago worked at the former Northwest Airlines as director of business travel marketing, where he helped launch its frequent-flier program. He subsequently started several of his own businesses.
Comfort Inn hit with ADA lawsuit
Hanford Sentinel
An Arizona woman is suing the Comfort Inn in Hanford, alleging the hotel’s swimming pool is not handicapped accessible.
The lawsuit filed Monday with the U.S Eastern District Court of California claims Theresa Brooke, a resident of Pinal County in Arizona, called the hotel before booking a room for “personal and business affairs in the Central Valley.”
The Americans with Disabilities Act of 1990 seeks to prevent discrimination and ensure equal opportunities for disabled people. The law requires all public entities built or altered after March 15, 2012, including hotels, to provide wheelchair access for their swimming pools. Pools built before that date must be made accessible when it can be “readily” achieved “without much difficulty or expense.”
Is your workplace equipped to help employees with cancer?
HR Dive
· October marks Breast Cancer Awareness Month, and it's also a reminder for workplaces to reacquaint themselves with the Americans with Disabilities Act (ADA) and the act's guidelines concerning cancer in the workplace, Karen Michael writes for the Richmond Times-Dispatch.
· Employees who have cancer, even cancer that is in remission, are classified as having a disability under the ADA, and there's no waiting period for employers to provide reasonable accommodations. Michael lists several examples of such accommodations, including leave for doctors' appointments and treatment recovery, periodic breaks, designated recovery areas, and modified work schedules among other permissions.