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ADA ENFORCEMENT ACTIONS: DISABILITY ACCESS LITIGATION AND STATUTORY ATTORNEY FEES FOR ENFORCING THE AMERICANS WITH DISABILITIES ACT OF 1990
by Paul L. Rein, Esq.
Law Offices of Paul L. Rein
Oakland, California
1. THE ADA PROVIDES AN OPPORTUNITY FOR PUBLIC SERVICE AND ATTORNEY FEES
We'd all like to use our law practices to improve the social welfare and the public interest. However, most of us also need to earn money to support our families and our law practices. ADA enforcement lawsuits used to gain public access for physically disabled persons at major public accommodations throughout the United States are a great way for trial lawyers to carry out public interest improvements while being compensated by statutory attorneys fees. These successful attorneys will be collecting statutory legal fees from major businesses caught illegally maintaining barriers which deny "full and equal" access to public accommodations to disabled persons. A great many barriers remain to be removed.
The Americans with Disabilities Act of 1990 (42 USC § 12101) defines "discrimination" against disabled persons to include the failure to remove architectural barriers where the removal of such barriers is "readily achievable," or is otherwise required by the building's construction date or alteration history after January 26, 1992. [ADA § 303] Enforcement of ADA compliance allows persons who must use wheelchairs, walkers, or canes to enter public buildings and use public restrooms on a "full and equal" access basis, the same as everyone else. When businesses - or governmental agencies - don't comply with the law requiring accessible public facilities, private lawsuits for injunctive relief are an effective way to gain access.
As of July 26, 2001, the ADA has been in effect for eleven years; yet there are very few private practice lawyers who file ADA access lawsuits. The dearth of attorneys currently handling these cases means that this field of law is wide open for more attorneys to participate. This article is intended to encourage more attorneys to handle ADA civil rights lawsuits.
2. ADA TITLE II AND TITLE III ALLOW ACTIONS AGAINST GOVERNMENTAL AND COMMERCIAL FACILITIES
Title III of the ADA requires access to privately owned public facilities, including restaurants, theaters, auditoriums, hotels, motels, shopping malls and retail stores, hospitals, doctors' offices, office buildings and banks, amusement parks, racetracks, and even cruise ships which contain public facilities.
(Stevens v. Premier Cruises, Inc. (11th Cir. 2000) 215 F.3d 1237) Title II of the ADA, applicable to governmental services, requires that courthouses, city halls, and government buildings operated by states, cities or counties, provide proper physical access, and program access. This requires, for example, that state colleges be properly accessible, both as to programs, class buildings, libraries, cafeterias, etc. The ADA is applicable without regard to the "intent" of the private or governmental entity. (Crowder v. Kitigawa, Chairman Hawaiian Bd. of Control (9th Cir. 1996) 81 F.3d 1480) ADA Title II and Title III both afford injunctive relief and prevailing party attorney fees as remedies.
3. ANALOGOUS STATE LAWS ALLOW DAMAGES AND ADDITIONAL REMEDIES Many states, including California, have their own state disability access laws and civil rights laws which provide damage remedies, in addition to state law injunction and attorney fees remedies. Since 1968 California's Legislature has passed a full slate of disabled access laws, requiring government owned public buildings to be accessible when constructed or when "alterations" are made. Similar requirements were extended to all "privately" owned public accommodations since July 1, 1970. (Govt. Code §§ 4450ff; Health and Safety Code §§ 19955ff.) As a California lawyer, I've been practicing disabled access law under California law for more than twenty-five (25) years and thus have had a "head start" in preparing to enforce the Americans With Disabilities Act of 1990. (Most of the examples cited herein have been encountered in my own practice.) California precedents may set useful examples of the availability of state law remedies to supplement those of the ADA. If you have any interest in this area of law, promptly check your own state's disability rights laws.
California case law holds that statutory damages (with a minimum of $1,000 per violation) and reasonable attorney fees necessarily incurred by a disabled plaintiff, must be awarded for statutory violations without regard to a defendant's "intent." Private enforcement actions under civil rights laws can be used to enforce existing building code disabled access standards (James Donald v. Café Royale (1990) 218 Cal.App.3d 168, 266 Cal.Rptr. 804; James Donald v. Sacramento Valley Bank (1989) 209 Cal.App.3d 1183, 260 Cal.Rptr. 49). Substantial state law damages may be awarded for violation of the requirement for "full and equal" access, in addition to substantial attorney fees (cf. Hankins v. El Torito Restaurants, Inc., et al. (1998) 63 Cal.App.4th 510, 74 Cal.Rptr. 2d 684, affirming $80,000 damages and $403,000 attorney fees.)
4. PRIVATE ADA ENFORCEMENT ACTIONS ARE NECESSITATED BY THE LACK OF "VOLUNTARY" COMPLIANCE
The Americans with Disabilities Act was passed by Congress effective July 26, 1990. As to privately owned buildings, an eighteen (18) month "window" was provided, with a "compliance" deadline of January 26, 1992. During this compliance period, businesses had an obligation to remove all barriers to accessible entrances, paths of travel, restroom facilities and parking when such removal was "readily achievable." [ADA § 301(9) and § 302(b)(2)(A)(iv).] Additionally, all areas of new construction or alteration in public accommodations after 1992 were required to be built accessible (ADA § 303) (as already required under California law since 1970).
"Readily achievable" is statutorily defined as "easily accomplishable and able to be carried out without much difficulty or expense." Under Botosan v. McNally Realty, et al. (9th Cir. 2000) 216 F.3d 827, the "readily achievable" standard requires a comparison of the estimated cost of providing access as against a number of statutory factors, including a comparison to the "overall financial resources" of each defendant. Proper use of these standards, and the necessary discovery areas opened by these issues, can be a strong incentive for the non-compliant defendant business to provide the required access.
The ADA envisioned that businesses would voluntarily "self-enforce" and "self-comply" during the eighteen (18) month compliance "window" and thereafter. Guess what? With little governmental enforcement, many businesses did not "self-enforce," and instead continued to maintain architectural barriers which blocked access for disabled persons - a denial of the "full and equal access" required by law. (§302 ADA, §54.1 California Civil Code.) Maintaining illegal architectural barriers is a form of discrimination against disabled persons which is a per se violation of their civil rights regardless of the "intentions" of the defendants. (Donald v. Café Royale, supra; Crowder v. Kitigawa, Chairman Hawaiian Bd. of Control, supra.) Against this background, action by a private lawsuit is often the only remedy which can end the barrier discrimination. The California Supreme Court has recognized the destructive effect of discrimination upon disabled persons:
Disability discrimination is indistinguishable in many ways from race and sex discrimination. Specifically, it can "attack the individual's sense of self-worth in much the same fashion as race or sex discrimination." --City of Moorpark v. Sup. Ct. (1998) 18 Cal.4th 1143, 1160
Once a building department has allowed state law violations without proper administrative enforcement, or when businesses choose not to voluntarily remove "readily achievable" barriers, a building will remain forever unusable for disabled persons unless a private enforcement lawsuit is used to compel access changes. (In most situations requiring private lawsuits to enforce access under state law, a building department has previously failed to enforce existing building code access requirements.)
5. ENFORCEMENT BY THE U.S. DEPARTMENT OF JUSTICE IS INSUFFICIENT BY ITSELF
Title II of the ADA requires building and "program" accessibility in government buildings, whereas Title III covers privately owned and operated public accommodations. While enforcement from the U.S. Attorney General's office is possible, the degree of enforcement of Civil Rights under the new Attorney General is "unknown to this writer at this time." However, the bulk of Title II and title III enforcement over the last ten years, has been and must continue to be by private lawsuits. For example, in California, universities and state college campuses, county courthouses, Veterans Administration facilities and joint private- governmental operators - such as the Sacramento "Waterworld" amusement park and "BART" (Bay Area Rapid Transit transportation system) - have all been successfully sued under Title II to obtain more accessible governmental facilities and services. Under ADA Title III, even major amusement parks and major year round recreational facilities have been required to provide access throughout their buildings, grounds, and paths of travel. (Cf. Atwood v. Six Flags Marineworld U.S.D.C. (E.D.Cal.) Case No. CIVS- 99-1134 LKK/JFM; Leiken v. Squaw Valley Ski Corp., Alex Cushing U.S.D.C. (E.D.Cal.) Case No. CIVS-93-505 LKK/GGH) Other actions have gained access to major live theaters and movie theaters, hotels, restaurants, office buildings, hospitals, medical centers, and major retail facilities such as Penney's, Safeway and Rite Aid. While ADA Title III is primarily enforceable by private lawsuits, the United States Department of Justice did join with disabled plaintiffs in some (mainly class) actions during the 1990's. In the year 2000 the Department of Justice filed an amicus curiae brief supporting a successful (California) private lawsuit which held the world's largest cruise ship line, Carnival Cruise Lines, responsible for ADA compliance. (Bernard Walker & Christina Adams v. Carnival Cruise Lines (N.D.Cal.), discussed infra.
6. THE CARNIVAL CRUISE LINES CASE OPINIONS SET USEFUL PRECEDENTS AND RECOGNIZED ADA PLAINTIFFS AS IMPORTANT "PRIVATE ATTORNEYS GENERAL"
In Walker and Adams v. Carnival Cruise Lines, et al. (Order of November 22, 2000) former Northern District of California Chief Judge Thelton Henderson held that the ADA applied to the public accommodation portions of even "foreign flag" cruise ships when they operate, in part, in American waters (following Stevens v. Premier Cruise Lines, supra). Earlier published opinions in that case set important and useful precedents: (1) The ADA may be used to require travel agent services to reasonably accommodate the needs of disabled travelers. (Walker and Adams v. Carnival Cruise Lines, et al. (1999) 63 F.Supp.2d 1083) (2) Although that opinion originally enforced Carnival's "forum selection" clause (requiring all persons to bring any action against Carnival in Florida under the general rule established in Carnival Cruise Lines, Inc. V. Shute (1991) 499 U.S. 585) on rehearing the court reversed its earlier order and found that the ADA would be violated if a disabled person physically unable to travel to Florida was forced to bring his or her lawsuit only in Florida as a condition of enforcing their statutory rights. (Walker and Adams v. Carnival Cruise Lines, et al. (2000) 107 F.Supp.2d 1135, 1143). In Walker, supra, Judge Henderson recognized the importance of ADA plaintiffs as "private attorney generals" enforcing a Congressional "policy of the highest priority," in holding that the ADA and other relevant civil rights lawsuits' considerations made it improper to enforce Carnival's forum selection clause against such physically disabled persons who could not travel to Florida, finding such "strict interpretation and blind enforcement of the forum selection clause here at issue would do nothing less than revictimize these plaintiffs." (Id. at 1146)
The court distinguished the holding of the U.S. Supreme Court in Carnival v. Shute, supra, which upheld the general enforceability of "forum selection" provisions in small print on Carnival's multipage tickets, noting that the Supreme Court had conditioned that the claim would be enforced unless application would be "fundamentally unfair." In his ruling Judge Henderson expounded upon the important public policies at stake:
This Court is persuaded that enforcing defendants' forum selection clause, under the circumstances presented here, would contravene the strong national policy of eradicating disability discrimination and promoting full and equal access to the legal system for civil rights plaintiffs. There can be no question that the Americans With Disabilities Act, passed in 1990, established as law the nation's interest in eradicating the bigotry and barriers faced by individuals with disabilities. 42 U.S.C. § 12102 et. seq. (hereafter "ADA"). In fact, the ADA states its first goal as being "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." See 42 U.S.C. §12101(b)(1)(1990). The ADA creates the possibility that successful plaintiffs may establish permanent changes in the design and physical configuration of structures to better accommodate the disabled. 42 U.S.C. § 12101(a)(5). The benefits of such changes clearly redound not only to the plaintiffs themselves, but to similarly situated disabled persons, and the entire society at large. As a result, plaintiffs or plaintiff classes who bring suit pursuant to the ADA do so in the role of "private attorneys general" who seek to vindicate "a policy of the highest priority." (Citations)
For example, successful ADA plaintiffs confer a tremendous benefit upon our society at large, in addition to the attainment of redress for their personal individual injuries; successful ADA plaintiffs, like plaintiffs under Title VII, are entitled to 42 U.S.C. section 1988's fee shifting provision. See 42 U.S.C. § 1988. As the Eleventh Circuit recently has explained,[I]n Title VII cases as well as cases under the ADA, the enforcement of civil rights statutes by plaintiffs as private attorneys general is an important part of the underlying policy behind the law. Such a policy ensures an incentive for "impecunious" plaintiffs who can ill afford to litigate their claims against defendants with more resources . . (Citations)
7. REMEDIES UNDER STATE LAW FOR VIOLATION OF THE ADA
Some states have their own civil rights laws which include protections for the rights of disabled persons. Sections 54 and 54.1 California Civil Code guarantee "full and free use" of public streets, sidewalks, public buildings and medical facilities, and "full and equal access" to all accommodations, advantages and facilities of all places of public accommodation. Any violation of California's disabled access building standards, sections 19955ff Health & Safety Code, also constitutes a violation of section 54.1, guaranteeing damages under section 54.3. (Donald v. Café Royale, supra; Donald v. Sacramento Valley Bank, supra.) Per California Civil Code sections 54(c) and 54.1(d), any violation of the ADA also constitutes a violation of these sections, with damages, attorney fees, and injunctive relief remedies per §§ 54.3 and 55 Civil Code. Thus, although ADA Title III itself does not provide direct damages, damages may be available if state civil rights statutes adopt the ADA as a per se violation. (For authority that violation of the ADA may be a per se safety violation, as a negligence standard, see Smith v. Walmart (6th Cir. 1999) 167 F.3d 286.)
Both the ADA itself and the related state civil rights statutes have "prevailing party" attorney fees provisions. However, fees - and costs - are only for prevailing plaintiffs under ADA § 505 and § 36.505 following the ruling in Christiansburg Garment Co. v. Equal Employment Opportunity Comm. (1978) 434 U.S. 412, that attorney fees will not be awarded against a "good faith" civil rights plaintiff, unless the lawsuit is found to be "frivolous" or "fraudulent." A recent 9th Circuit decision extended this rule to recovery of costs in an ADA case. (Brown v. Lucky Stores, Inc., 2001 U.S. App. LEXIS 6609) The ADA provides for recovery of attorney fees, litigation expenses, and costs. (Section 505 [42 USC 2205]). California awards attorney fees alternatively for recovery of any statutory damages pursuant to section 54.3 (Donald v. Café Royale, supra) or for obtaining injunctive relief per section 55 California Civil Code and section 19953 Health and Safety Code. Attorneys throughout the United States should check their own state's civil rights laws to see (a) if there are provisions which protect disabled persons; (b) whether these state statutes incorporate a violation of the ADA as a violation of that state's civil rights laws; and (c) what remedies are available with regard to damages, injunctive relief and attorney fees.
Section 505 of the ADA gives broad recovery not only for attorney fees and costs but also for "litigation expenses." The Department of Justice has interpreted Section 36.505 of the Department of Justice regulations to specify that recovery of "litigation expenses" will include these types of expenses normally paid by a private paying client, including expert witness and expert consultant fees.
Although pursuant to federal law no "enhancement" of attorney fees may be directly permitted, recovery under state public interest statutes which allow enhancement - for example California's Code of Civil Procedure §1021.5, the "private attorney general" statute - has been held to permit a multiplier enhancement based on contingent fee risk and other factors. This enhancement under state law standards is enforceable in federal court, (Mangold; Crommie v. California Public Utilities Comm'n et al. (9th Cir. 1995) 67 F.3d 1470; Crommie v. State of California, et al. (1994) 840 F.Supp. 719.) A unanimous decision of the California Supreme Court in Ketchum v. Moses (2001) 24 Cal.4th 1122, 104 Cal.Rptr.2d 377, recently upheld the right to seek multiplier enhancement and rejected the alleged "federal rule" to the contrary.
8. VENUE/JURISDICTION
ADA cases may be filed in state court or federal court, although a complaint containing an ADA cause of action filed in state court may be removed at defendant's option to federal court because the lawsuit seeks relief under a federal statute. However, even in federal court additional state law causes of action (including those allowing damages) may be included under the doctrine of "supplemental jurisdiction." (See generally 28 USC § 1367(c)(3).)
9. NECESSARY ALLIES: ACCESS CONSULTANTS
Expert consultation either from licensed architects (who are required to know both State and ADA access requirements) or a growing body of trained "access consultants" who are specialists in handicapped access requirements but are not licensed architects, will be of assistance in making your way through the maze of specific building requirements. However, because these requirements are objective and specific - i.e., an "accessible" toilet must be 17" to 19" off the floor, have 48" clear space in the front, 32" clear space on one side (to allow "side transfer") and provide a 60" turning radius - these are matters upon which most access consultants should agree. It simplifies settlement negotiations when both sides have retained qualified consultants, who may often agree among themselves as to the specific access additions which are legally required, depending on the construction history of the building and, under the ADA "readily achievable" standard, the necessary cost of proposed access improvements. However, in the event of disagreement, it should be defendant's burden to prove that provision of access is "not readily achievable," per ADA §302(b)(2)(A)(iv)-(v), an affirmative defense.
10. WHICH ATTORNEYS ARE QUALIFIED TO HANDLE DISABLED ACCESS CASES?
Attorneys who have any experience handling standard tort cases can also handle Civil Rights disabled access cases, either under the ADA and/or under local state law, with several plaintiff advantages compared to basic (negligence) tort litigation:
No proof of wrongful "intent" is needed for ADA liability (Crowder v. Kitigawa, Chairman Hawaiian Bd. of Control , supra; Helen L. v. DiDario (3d Cir. 1995) 46 F.3d 325); or in California under § 54.1 Civil Code (Donald v. Café Royale, supra).
Statutory liability for providing access, triggered by new construction or alteration, per ADA § 303 (42 USC 12183), is often easy to prove by "construction and alteration" building department records.
If defendants deny that providing access is "readily achievable," they must offer evidence of (1) the cost of providing access, for comparison against (2) the "overall financial resources" of each owner and operator, lessor or lessee. (ADA Section 301(9) (42 USC 12181); Botosan v. McNally Realty, et al., supra);
If plaintiff is successful in achieving any access, or in obtaining state law damages, defendants must pay plaintiff's attorney fees. (ADA § 505; California Civil Code §54.3; Donald v. Café Royale, supra) Therefore, defendants usually can't simply outspend plaintiff to discourage plaintiff's attorneys from handling "small" cases. (Compare the willingness of insurance companies to outspend plaintiffs' attorneys in order to discourage lawsuits in smaller accident and tort cases, for example, to spend $15,000 in defense attorney fees rather than pay $5,000 to settle a small "rear-ender" case.)
11. CONCLUSION
Attorneys who have handled other civil rights cases, and attorneys who can handle personal injury litigation and would like to expand their areas of practice, will enjoy handling disabled access litigation. Attorneys who inform local disability rights organizations and activists that they are willing to handle disability rights cases on a contingent statutory fee basis - seeking a statutory fee to be paid only by defendants - will have no difficulty finding plenty of potential clients. Other attorneys who specialize in this area of law will be glad to help you when legal issues arise. Here's a chance to do major public service, and to get paid for doing so! "Do Well By Doing Good!"
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