Plaintiffs have brought more than 150 lawsuits in federal court in Denver against Colorado businesses alleging violations of the Americans with Disabilities Act (ADA) over the past year, following a national trend. These lawsuits allege that businesses have failed to make their facilities accessible to disabled persons, as Title III of the ADA requires. Business owners often are blindsided when they are served with a complaint, because the ADA—outside the employment context—does not require plaintiffs to alert businesses of violations or give them an opportunity to remedy before bringing suit.

In most instances, it is a single plaintiff who brings 15 to 20 lawsuits at a time. A disabled person, often accompanied by a "tester," will visit several businesses in a single day and assess whether the businesses are compliant with ADA standards for public accommodations. The alleged violations may be for minor infractions, such as installing a toilet paper dispenser or mirror at the wrong height, or not fully securing carpet edges to the floor. Except for a few paragraphs, the allegations in the complaints are usually identical for all of the businesses visited. Because the court complaints are filed en masse based on visits to many businesses on a single day, they are called "drive by" lawsuits.

Only a handful of plaintiffs, represented by a few law firms, are responsible for the majority of the ADA accessibility lawsuits in Colorado. The plaintiffs include Santiago Abreu, an allegedly disabled Florida resident, who regularly travels to Colorado for medical marijuana and has filed 34 lawsuits; Terrell Frederick, who has brought 43 lawsuits on his own behalf as a tester and on behalf of his minor child; and Mellisa Umphenour, who filed 64 lawsuits as the mother of an allegedly disabled boy. Ms. Umphenour received press attention earlier this year for her role in these lawsuits because she also serves as a chairperson of the Colorado Developmental Disabilities Council—an appointment she received from Governor John Hickenlooper, who has declined to comment on her role as a serial plaintiff.

ADA accessibility lawsuits have been filed against businesses in various parts of the state, including Arvada, Breckenridge, Broomfield, Colorado Springs, Denver, and Durango. Colorado property owners are not alone in facing these lawsuits. Other states have seen this type of ADA litigation for years.

While the ADA does not provide for money damages, many businesses decide to settle—even where they believe they are fully in compliance with the ADA—to avoid incurring the greater expense of trying to fight the cases in court. This infuriates business owners who view litigation as an inappropriate way to enforce ADA compliance and the lawsuits as a major annoyance.

While changes to the ADA may be on the horizon to prevent these types of "drive by" lawsuits, the best way for businesses to currently avoid them is to conduct self-assessments to ensure their facilities are compliant with the applicable ADA standards for accessibility. If a business is open to the public and has undergone any construction or renovation within the past 27 years, it is likely that ADA standards apply. To assist businesses in understanding what is required, the U.S. Access Board publishes guides, animations, and other information on its website regarding the ADA accessible design standards.

Ballard Spahr's national Accessibility Team is fully versed in all areas of compliance under the Americans with Disabilities Act (ADA) and other laws designed to protect the rights of people with disabilities. We help clients across the country to assess their rights and responsibilities under the law, design programs to keep them in compliance, and defend against claims of discrimination.

Copyright © 2017 by Ballard Spahr LLP.
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