For many years, the Middle District of Florida, along with several other jurisdictions around the country, has been plagued with “drive by” ADA lawsuits. In these lawsuits, an allegedly disabled individual will supposedly visit (“drive by”) numerous establishments of the same type, such as restaurants or retail stores, and claim that he or she was unable to sufficiently access the facility due to various technical ADA violations.
These “drive by” lawsuits, which generally involve only minor ADA deviations such as a sink or mirror that is a few inches too high, are frequently filed by plaintiffs who have no serious desire to patronize the establishment in question, other than to visit for the purpose of discovering ADA violations. After the “visit,” these plaintiffs go home and, without even the courtesy of a demand letter, file suit demanding expensive renovations and attorney fees. These plaintiffs repeat this process and file hundreds of lawsuits and thereby abuse a remedial statute intended to help the truly disabled and disadvantaged, clog court dockets, and impose the cost and aggravation of litigation on businesses.
Recently, these plaintiffs (and their attorneys) have devised a new method of filing lawsuits without even the trouble of leaving their homes (or offices). The plaintiffs now go the company’s websites and claim that they are unable to sufficiently access the websites, based upon supposed noncompliance with complicated technical requirements to render the websites ADA-compatible. In a recent variation on this theme, the plaintiffs have started suing municipalities, alleging that the town websites fail to comply with the ADA.
Although these website lawsuits gained some initial traction before several South Florida Federal Judges, they were recently rebuffed by newly-appointed United States District Judge William Jung in the Tampa Division. In Price v. Town of Longboat Key, 19-591 (M.D. Fla. May 20, 2019), the court dismissed the Complaint. First, Judge Jung noted that the plaintiff did not live in Longboat Key and did not have any concrete plans to visit, let alone move to Longboat Key. Thus, the plaintiff did not have any real standing to complain about the town’s website. Second, the town did not have any discriminatory intent because it promptly supplied the information on the website to the plaintiff in an accessible format upon request.
Hopefully, these two points of analysis in this case, regarding (1) the plaintiff’s bona fide desire to access the accommodation, and (2) the defendant’s good faith attempt to provide suitable access upon notice of a problem, will be adopted more broadly in ADA litigation.
As always, businesses faced with frivolous lawsuits should carefully examine the facts and law to identify suitable defenses. Frivolous statutory litigation requires experienced counsel to draft successful dispositive motions.