The numbers clearly prove that Arizona’s lodging and tourism industry flourishes as the state’s second-leading sector in terms of positive economic impact. Despite the success of this multi-billion-dollar industry, a subtle foe continues to attempt the throttle vitality of a thriving market.
But Arizona is not alone in facing this threat.
In December, Anderson Cooper hosted a segment on “60 Minutes” titled “Drive-by Lawsuits,” highlighting rampant frivolous lawsuits involving the ADA (Americans with Disabilities Act).
States like California and Florida have been hit hard with litigation involving questionable ADA lawsuits, as has our state, with a single organization filing 1,700 non-compliant ADA lawsuits to date, with a potential total of 100,000 yet to come, according to Caroline Larsen, employment attorney at Ogletree Deakins.
This rash of ADA-related lawsuits started showing up in Arizona in the summer of 2015, according to Lindsay Leavitt, a litigator who practices commercial litigation, personal injury, administrative law and labor and employment law for Jennings Strouss.
According to the Arizona Department of Transportation (ADOT), the “ADA prohibits a public entity from discriminating against qualified persons with disabilities in access to facilities and services that the public entity provides.”
In 2015, Theresa Brooke, a woman who uses a wheelchair, called different hotels around the Valley to see if they had a pool lift at their facility. If they said “no,” she went and filed a lawsuit against the facility. She filed more than 100 lawsuits.
According to Leavitt, most of these cases are not going court. But in the ones that do, the hotels are arguing that they shouldn’t be sued because Brooke never intended to actually visit the hotel.
Even though this sounds like a reasonable defense, the courts sided with Brooke because it is required that any building built after March 2015 have accommodations for the disabled.
Brooke is known as a serial plaintiff, according to Leavitt, because of her multiple cases on ADA regulations on the same topic and against the same industry.
How is this happening?
Since August, local ABC 15 news investigator David Biscobing has been following the barrage of lawsuits filed by Advocates for Individuals with Disabilities (AID), the entity responsible for single-handedly filing 1,700 ADA lawsuits within six months.
How exactly is this impressive endeavor being accomplished? It’s easier than you might expect. As explained by Discobing and Cooper (from a national perspective), the ADA stipulates that buildings, businesses, commercial facilities – hotels are obviously included – must adhere to very specific measurements related to accessibility in parking spots with adequate space, signage at proper height/distance and ramps constructed to precise dimensions.
An individual need only drive by (thus the coined phrase “drive-by lawsuits”), hop out of the vehicle, take a quick measurement and if any of the previously mentioned mandated logistics are off point – you’ve got yourself a lawsuit.
Is it really that easy? For now, yes, according to Larsen.
“This is still a narrow area of the law.” Larsen explains. “You only need to know a little, but can do a lot of damage.”
For example, if a hotel or motel offers a free shuttle, but does not offer accessibility for those with disabilities, that hotel is noncompliant under the ADA. An ADA reserved parking sign an inch off specifications is also ADA noncompliant.
Even if a website doesn’t state certain information pertaining to ADA compliancy in bookings, the opportunity for legal penalty is possible.
How is Arizona fighting back?
According to Arizona Lodging & Tourism Association Executive Vice President David Drennon, the Molera Alvarez Team, a local government and public affairs firm, has aligned with AzLTA to advocate for tourism interests in Arizona going into the next legislative session.
“They’ve been around a long time and have strong policy experience, as well as a strong network of contacts,” Drennon says. “Having them as government affairs representation for lodging and tourism stands to elevate the voice of the industry.”
A strong voice that advocates for the tourism industry is assuredly needed in regard to ADA lawsuits in Arizona, as well as those occurring at a national level, Drennon explains.
One of many advantages of bringing on the Molera Alvarez team, according to Drennon, it its ability to supersede issues even before they are addressed at the legislature.
Being one step ahead with legal advocacy will be what is necessary moving forward for the lodging tourism industry, as will educating local accommodations on how to be ADA compliant, Drennon says.
What can Arizona hotels do to protect themselves?
Having a larger voice, like the one Molera and Alvarez will provide through advocating at the state government level, is invaluable toward achieving the goal of protecting Arizona’s thriving tourism industry, experts say.
On a micro level, there are initiatives that can benefit Arizona’s lodging destinations.
“Be sure to train your staff,” Larsen recommends to hotel and resort management.
Something as seemingly simple as the ability to enable closed captioning for a guest can become problematic on a legal level if a staff member isn’t aware that the option exists, or doesn’t know how to operate the feature. Although legal repercussions resulting from this scenario may seem farfetched to some, it’s an example of the growing reality that lodging purveyors need to face.
“If you don’t know what services are ADA compliant (or not),” Larsen warns, “you can’t protect yourself. This industry is a particular target and will continue to be a high area of litigation.”
Hot spots for ADA lawsuits that accommodations should be aware of according to Larsen: parking spots and lots, bathrooms and websites.
“There are a hotbed of compliance issues across the Valley,” Larsen says, “I don’t think it’s going away.”
Until they do go away, or diminish (if the day comes), expert say Arizona’s lodging and tourism market can benefit by adopting Plato’s famous words of “know thyself” with the addition of “know ADA compliancy requirements.”
“As a business owner, the worst thing you can do is to bury your head in the sand and wait until there’s a problem,” says Marc Lamber, chair of the Personal Injury Practice at Fennemore Craig. “Be proactive and consult with an attorney experienced in ADA compliance issues for an evaluation of your premises. According to the Department of Justice, more than 50 million Americans – 18 percent of our population – have disabilities, and each is a potential customer.”
Each is also a potential litigant.
