The Use of Standing as a Shield to Public Accommodation Claims

For the majority of retail stores, their first exposure to Title III of the Americans with Disabilities Act is in the form of a lawsuit which alleges the existence of architectural barriers that render the property inaccessible and/or unusable to persons with disabilities. The ADA’s obligation to remove architectural barriers which impede access to or use of places of public accommodation by people with disabilities has been in place for over 20 years; therefore, it is hard to claim ignorance of the obligation. The ADA provides specific requirements pertaining to the design and physical features that must be present at a property that is open to the general public. For the most part, the failure to comply with the ADA architectural requirements is a per se violation of the Act unless the property owner/operator can show that compliance with the requirements is not reasonably feasible. For most locations, this isn’t a realistic defense.

The laudable purposes behind the enactment of the ADA has, to some extent, been hijacked by a cottage industry of professional plaintiffs who, while legitimately disabled, did not actually confront the alleged barrier nor were they impacted by it. Instead, the claims are frequently a money-making opportunity woven within the fabric of a legal claim. This takes the form of an plaintiff who is actually looking for alleged deficiencies so that he/she can seek an award of compensatory damages for their inconvenience, and also an award of attorney’s fees and costs for bringing the action. It is not uncommon for one of these plaintiffs to “visit” a particular town or area and to then initiate a wave of nearly identical claims.

The defenses to a Title III claim are limited since a determination that there has been a departure from the architectural standards is oftentimes not seriously in dispute and there is no requirement of a showing of an intent to discriminate. Instead, one of the principal bases to defend such a claim is to challenge the plaintiff’s right and/or ability to assert the claim in the first place. This process was recently highlighted in the United States District Court opinion in The Independence Project, Inc. and Ronald Moore v. Shore Point Plaza, LLC, 2020 WL 6363714 (D.N.J. Oct. 29, 2020).

In that case, Mr. Moore, a quadriplegic, and the Independence Project (a non-profit purporting to represent its members) filed suit against Shore Point Plaza, LLC, alleging that the shopping center was not ADA compliant. Mr. Moore claimed that he had visited the Plaza on numerous prior occasions and that he planned to return at some point in the future. The Plaza failed to answer or otherwise respond to the complaint, and the plaintiffs sought the entry of a judgment by default, compelling the property owner to undertake certain architectural repairs to the property.

In a stinging rebuke of the claim, Judge Wolfson concluded that Mr. Moore lacked standing to assert the claim, and this finding was also fatal to the Project’s associational claim. Specifically, Judge Wolfson noted that, since Mr. Moore was seeking prospective injunctive relief in the form of repairs to the property, he had to show that he was likely to return to the Plaza and to once again confront the alleged architectural barriers. The court took judicial notice of the fact that Mr. Moore lived 64 miles from the Plaza and further commented that the plaintiff’s mere desire to visit a place of public accommodation was insufficient to demonstrate a real or immediate threat of a concrete and particularized injury. Judge Wolfson also found that the Project’s claim was similarly flawed since it could not show that any of its members had standing to assert the claim of a denial of access to the property and for the same reasons.

From a practical standpoint, defending claims brought under Title III and relating to an alleged denial of access due to architectural barriers can be a frustrating and expensive proposition. Compliance with or deviations from the architectural standards are generally easy to determine by a qualified engineer or architect. Once a deficiency is confirmed, there is limited benefit to litigating the issue since, at the end of the day, that fact can’t be changed. Since the claims are fee shifting, you are, quite literally, paying the plaintiff and his attorney to assert the claim against you.

The lesson to be learned from the Project Plaza decision is that one of the few defenses to such a claim is to explore the ability to challenge the plaintiff’s very ability to assert the claim in the first place. This option has become all the more plausible due to the small cadre of plaintiffs looking to assert these claims and their questionable actual contact with the property.

*Larry is a shareholder and works in our Mount Laurel, New Jersey office. He can be reached at (856) 414-6031 or lbberg@mdwcg.com.

_{Defense Digest, Vol. 27, No. 1, January 2021 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2021 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}