The number of claims under the design and construction requirements of the Americans with Disabilities Act (ADA) continues to increase, but a recent development in Arizona may slow this trend.

The Arizona Attorney General has intervened in ADA cases filed by the Phoenix-based Advocates for Individuals with Disabilities Foundation, Inc. (AID). In the past nine months, AID has filed more than 1,200 lawsuits against both local and national business owners and landlords related to alleged violations of Title III of the ADA. Most of the violations relate to whether or not businesses have the requisite accessibility parking signs and whether those signs were at the correct height (at least 60 inches from the bottom of the sign to the ground), all of which were identified and photographed during brief car stops at the properties.

The AG filed a motion to intervene in one of the many cases filed in Maricopa County Superior Court, citing its intervention as a matter of public importance. Along with the intervention, the AG concurrently filed a motion to consolidate more than 1,100 of the lawsuits filed by AID. The AG's motion to intervene as a limited-purpose defendant was granted on September 9, 2016, with the court finding the State has an interest in the subjects raised in the consolidated cases that may be impaired if intervention is not allowed.

Shortly after, on September 23, 2016, the court went further by granting the AG's motion to consolidate the many AID lawsuits so that the intervention would in effect apply to all, and staying all of the cases pending further order of the court. The court also directed the plaintiff not to file any new complaints raising substantially similar legal issues without leave of the court.

The State intends to file a motion to dismiss all consolidated cases on the basis of threshold questions of law and fact common to all the cases, including that AID lacked standing to bring the lawsuits. The AG is expected to pursue sanctions against AID and its attorney.

This case will continue to be of great importance to all landowners and landlords in Arizona and beyond because it may influence whether ADA advocacy groups are allowed to use "drive-by" litigation in the future, and whether the type of trolling tactics used by AID (filing thousands of lawsuits and seeking profitable out-of-court settlements) will be allowed to continue. Likewise, the AG's actions should reinforce the continuing calls for amending the ADA to give property owners prior notice and time to fully comply before unnecessary penalties are imposed.

Ballard Spahr's Accessibility Team and Real Estate Development and Complex Transactions Group regularly assist business owners and landlords subject to Title III of the ADA.

Copyright © 2016 by Ballard Spahr LLP.
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