ADA Shakedown Artist Targets Small Businesses Still Struggling to Recover from COVID-19
Vikki Butler owns and operates a small home decor business with her daughter in Richland. They struggled to make ends meet and keep their doors open during COVID-19. Their hardships exasperated during shutdown orders that required them to close up shop and limit foot traffic to the store.
Just as the state and the Tri-Cities began to open, Vikki and her daughter were hit with what is often called a “drive-by” Americans with Disabilities Act (ADA) lawsuit. These lawsuits have been dubbed “drive-by” because the plaintiff typically only drives-by the property to collect the barest, and sometimes dubious evidence before filing suit. In fact, one of the claims in the lawsuit is failure to provide an ADA compliant restroom, but the restroom has been closed since March 2020 due to pandemic restrictions. This CBS 60 Minutes segment sheds light on the abusive practice. ADA drive-bys are essentially extortion schemes brought by a lawyer looking to make a quick buck for themselves and a single plaintiff. They are not about just enforcement or compliance with the ADA.
Vikki and at least a dozen of her shopping center neighbors, including the local Veterans of Foreign Wars (VFW) Hall, were hit with boilerplate lawsuits alleging various ADA infractions. Some of the suits even list the exact same alleged infraction to multiple businesses, making it clear they are generic and mass-produced. Her neighbors are facing demand letters for upwards of $5,000. In a recent interview with KAPP/KVEW TV, Vikki said they've been wrongly sued for being out of compliance with ADA regulations and are fighting back.
These cases in Washington state are often successful at squeezing cash out of small businesses. Unlike states such as California and Arizona, Washington does not afford a Notice and Cure period where property owners can address the issues alleged in a lawsuit and avoid a punitive fee. In our state, all a lawyer needs is a demand letter and a plaintiff willing to be added to dozens of lawsuits to turn a quick profit.
Help is On the Way
After hearing about the series of abusive lawsuits, Rep. Brad Klippert introduced a last-minute bill, HB 1574. The bill would provide a short Notice and Cure period for businesses to address issues alleged in demand letters and, if not ADA compliant, become so. If a business fails to make the necessary changes in the grace period, the lawsuit will proceed. Unfortunately, the bill did not make it out of the policy committee before the deadline and was not introduced this session. We believe Rep. Klippert intends to reintroduce this bill in the 2022 legislative session and the WBPA will fully support him.
This type of Notice and Cure Law is already in effect in California and Arizona and has saved hundreds of small businesses from predatory litigation. It also protects the rights of people experiencing disabilities and ensures they will get relief under the ADA and, if the business doesn’t make changes, appropriate compensation.
As of this publication, small businesses in Spokane are beginning to receive the same boilerplate demand letters from the same attorney and the same plaintiff. It is critical that the legislature addresses this issue as soon as possible to protect future small business owners from becoming victims to this scheme.
The ADA and Business Properties
The ADA is an essential civil rights law that helps ensure people, regardless of their abilities, can access and enjoy the same spaces as every other American. The ADA literally opened new doors for people so they can fully access civic, commercial, and economic opportunities that were not guaranteed to them prior to its passage.
All publicly accessible properties in Washington state should adhere to the letter and spirit of this essential law. If properties are not in compliance, we fully support the ADA’s civil procedures that enable anyone living with a disability to seek redress and compel a property to become compliant. HB 1574 will ensure that avenue remains viable and robust while allowing the property owner an appropriate time period to become compliant while at the same time deterring abuse of the ADA.