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Plaintiff bears the burden of suggesting a method of removing the barrier that is easily accomplishable and able to be carried out without much difficulty or expense. 42 U.S.C. � 12181(9); Odco Investments, supra. Expert testimony is required to prove the ease and inexpensiveness of the proposed method of barrier removal. Odco Investments, supra. A plaintiff will fail to meet this burden if she fails to produce "precise cost estimates regarding the proposed modification" and evidence of the defendant's gross profits. Id. If plaintiff is successful, then the burden shifts to defendant to prove that the suggested method is not readily achievable. 42 U.S.C. � 12182(b)(2)(A)(v). Whether the removal of an ADA violation is readily achievable is an issue of fact which cannot be determined on a motion for summary judgment. Access 4 All, Inc. v. OM Mgmt., LLC (S.D. Ohio 2007), Case No. 2:06-cv-0374, 2007 U.S. Dist. LEXIS 35429, citing Odco Investments, supra.

1.         Organizational Standing

For an organization to assert standing in its own right, it must have a personal stake in the outcome of the controversy.   Access 4 All, Inc. v. 539 Absecon Blvd. LLC (D.NJ 2006), Civ. Action No. 04-6060 (JEI), 2006 U.S. Dist. LEXIS 45499 (holding "an organization does not possess standing simply because it has an ideological or abstract social interest that is adversely affected by the challenged action").

Because the ADA prohibits discrimination against entities because of their association or dealings with disabled persons, an organization that, for example, is denied a zoning permit because it cares for and/or associates with disabled individuals has a concrete injury which confers standing under the ADA to bring suit on its own behalf. Addiction Specialists Inc. v. Twp. Of Hampton (3rd Cir. 2005), 411 F.3d 399; MX Group, Inc., supra. Thus, if DPA is suing on its own behalf, because of an injury it suffered as a result of its association with the disabled, then DPA has standing without prudential limitations. However, this is not the likely theory under which DPA and other similar organizations will assert standing.

A more likely basis (if, in fact, organizational standing is DPA's basis) is a theory of organizational standing which first arose out of a suit brought under The Fair Housing Act. See Havens Realty Corp. v. Coleman (1982), 455 U.S. 363. In Havens, the Supreme Court held that a fair housing organization met Article III standing requirements for a Fair Housing Act (FHA) claim where it showed that defendants' alleged violations caused it to divert resources from other projects or devote additional resources to a particular project in order to counteract discrimination.

The circuit courts differ as to the extent to which they will consider organizational injury related to litigation expenses. Fair Hous. Council, Inc. v. Vill. of Olde St. Andrews (6th Cir. 2006), 210 Fed. Appx. 469; 2006 U.S. App. LEXIS 31217. The more restrictive circuits (D.C., 3rd, 5th, 9th) require organizations to show that they suffered a concrete injury completely independent from economic and non-economic costs of litigation. Id.; see also Autism Society of Michigan and Michigan Protection and Advocacy Svc. Inc. v. Fuller (W.D. Mich. 2006), Case No. 5:05-CV-73, 2006 U.S. Dist. LEXIS 33979 (holding that in order for an organization to have standing in its own right under the ADA, it must have been discriminated against because of its association with a qualified individual with a disability, and not simply because it expended resources to address ADA violations); Clark v. Burger King Corp. (D. N.J. 2003), 255 F. Supp. 2d 334 (an organization with an ideological interest in preventing disability based discrimination, whose primary purpose is ADA litigation, lacks standing to pursue claims in its own right); Tennessee Protection and Advocacy, Inc. v. Bd. Of Ed. Of Putnam Cty. (M.D. Tenn.1998), 24 F. Supp. 2d 808 (a non-ADA case, holding that litigation expenses alone do not constitute injury sufficient to support standing of an organization); Ass'n for Retarded Citizens of Dallas v. Dallas Cty. Mental Health & Mental Retardation Ctr. Bd. Of Trustees (5th Cir. 1994), 19 F.3d 241 (an FHA case, holding that "the mere fact that an organization redirects some of its resources to litigation and legal counseling in response to actions or inactions of another party is insufficient to impart standing upon the organization.")

More lenient circuits (7th, 2nd, 8th) allow organizations to prove standing by showing that they diverted resources toward litigation to counteract defendant's housing discrimination. Id. As determined in Vill. of Olde St. Andrews, the 6th Circuit is in accord with the lenient approach, requiring a plaintiff to show some injury independent of costs of litigation, but costs related to pre-litigation investigation (i.e., testers) can form the basis for standing.

There are no Ohio cases which specifically address an organization's litigation expenses as the basis for standing under the ADA. Were DPA to assert standing based on the "diverting resources" theory, it would most likely rely on Vill. of Olde St. Andrews. However, the Vill. of Olde St. Andrews case may be distinguishable, if it were discovered that DPA did not divert time or resources to recruiting testers or otherwise investigating the alleged discrimination by a Defendant.

2.         Associational Standing

Organizations like DPA will most likely assert standing on behalf of its members. An organization seeking injunctive relief for enforcement of protective legislation has standing if: 1) its members would otherwise have standing to sue in their own right; 2) the interest it seeks to enforce is germane to the organization's purpose; and 3) neither the claim asserted nor the relief requested requires the participation of the individual members of the lawsuit. Hunt v. Washington State Apple Adver. Comm'n (1977), 432 U.S. 333, 343; Disabled Patriots of Am., Inc. v. Lane Toledo, Inc./Disabled Patriots of Am., Inc. v. Suemar Realty, Inc. (N.D. Ohio 2004), 325 F. Supp. 2d 837. Access 4 All, Inc. v. OM Management, LLC (S.D. Ohio, May 15, 2007), Case No. 2:06-CV-0374, 2007 U.S. Dist. LEXIS 35429.

In Lane Toledo, the associational standing of DPA under the ADA was at issue before the U.S. District Court, Northern District of Ohio. DPA contended associational standing on behalf of its named and unnamed members. DPA sought attorney's fees and injunctive relief for violations of the ADA including those not actually suffered by its named plaintiff. No damages were sought. The court employed the Hunt test to find that DPA did in fact have associational standing.

Under the first prong (whether the individual plaintiff had standing to sue), the issue of whether plaintiff had ADA standing (i.e. a qualifying disability) was not challenged. Instead, the court focused on the 3-part Lujan test: 1) the court determined that plaintiff had suffered injury when faced with obstacles that impeded his movement on defendant's premises and that plaintiff had expressed an intent to return6; 2) a causal connection was established between plaintiff's injury and defendant's continuing failure to comply with the ADA; and 3) the injury was redressable by a court order to remove barriers to access.

DPA's allegations that it was an organization formed "to provide support for its members as well as create a unified voice to make society at large aware of the issues that affect disabled persons, and in particular the lack of access to public accommodations" was sufficient to satisfy the second prong of Hunt. Finally, the court held that the third prong of Hunt was satisfied because the barriers impeding plaintiff affected all people with similar disabilities, and DPA properly sought to further its organizational objectives by joining its members with plaintiff to challenge those alleged barriers. Significantly, the court did find that DPA lacked standing to bring suit under the ADA for infractions which it did not allege with any specificity in its complaint or for those not affecting the individual plaintiff's particular disability.

Although DPA successfully asserted associational standing in Lane Toledo, the standing of DPA, or similar entity, in any case should still be challenged. Following is a review of the Hunt test and areas for potential argument.

a.         First prong of Hunt - standing of members

There are two separate challenges to standing available to Defendants under the first prong of Hunt: 1) that the organization has no "membership" and/or that plaintiff individual is not a member of the organization; and/or 2) that plaintiff individual does not have standing to sue on her own behalf. If an individual plaintiff is determined to not have standing, and no other members have individual standing, an organization's claim should be dismissed for lack of standing. Access 4 All, Inc. v. Wintergreen Commer. P'ship, Ltd. (N.D. Tex. 2005), Case No. 3:05-CV-1307-G, 2005 U.S. Dist. LEXIS 26935.

One way to challenge DPA's standing under the first prong of Hunt is to argue that the organization is not a traditional voluntary membership organization. The court will look at whether the organization is the "functional equivalent of a membership organization," considering such factors as: indicia of membership in an organization; whether constituents elect members, serve on leadership bodies, finance its activities, including costs of lawsuits; and whether the interests of the organization will be adversely affected by the outcome of the litigation. Hunt at 344-45; Oregon Advocacy Ctr. v. Mink (9th Cir. 2002), 322 F.3d 1101, 1111.

Cases finding a functional equivalent of a membership organization were not ADA cases: Oregon Advocacy Ctr. v. Mink, supra (court found organization founded under the Protection and Advocacy for Mentally Ill Individuals Act (PAMII) was a functional equivalent to a voluntary membership organization in spite of the fact that it did not have all the indicia of membership under Hunt; it was funded by the federal government, its leadership was not just chosen by members and members were not the only ones who served as leaders; but the disabled were the primary beneficiaries of the organization's activities and resources and the organization would be adversely affected by the outcome of the litigation); Doe v. Stincer (11 Cir. 1999), 175 F.3d 879 (PAMII organization would have had associational standing because it was authorized by Congress to protect and enforce rights of individuals with mental illness, boards and advisory councils included members with mental illness, and constituents possessed means to influence priorities and activities of the organization; however, the organization lacked standing because it failed to show that even one individual member had suffered injury).

However, several cases, including an Ohio ADA case, have found that an association lacked standing to seek injunctive relief on behalf of an individual. OM Mgt., supra(Access 4 All lacked standing to bring an Title III ADA claim because the individual plaintiff was no longer a member of the association); Ass'n of Retarded Citizens v. Dallas Cty. Mental Health & Retardation Ctr. Bd. Of Tr., (5th Cir. 1994), 19 F.3d 241 (a protection and advocacy group lacked standing because the individual the group sought to represent was not a "member" and the organization bore no relationship to traditional membership groups because its "clients" (handicapped and disabled) were unable to participate in and guide organization's efforts.)

b.         Second prong of Hunt - germane to organization's purpose

This prong of Hunt should not be difficult for DPA and similar organizations to overcome, as all it would need to do is provide proof of the organization's purpose. See Disabled Patriots of Am., Inc. v. Lane Toledo, Inc./Disabled Patriots of Am., Inc. v. Suemar Realty, Inc. (N.D. Ohio 2004), 325 F. Supp. 2d 837.

c.         Third prong of Hunt - individual participation not required

The third prong of the Hunt test is considered discretionary (i.e., not a constitutional requirement under Article III) as it is concerned more with "matters of administrative convenience and efficiency," than elements of a case or controversy under the constitution. Lane Toledo, citing United Food & Commer. Workers Union Local 751 v. Brown Group (1996), 517 U.S. 544, 555. Where an association asserts claims solely on behalf of its members, "(prudential) standing depends in substantial measure on the nature of relief sought."

In a suit for damages, individual participation is excused only where Congress explicitly authorizes an organization to bring damages suits on behalf of constituents. United Food, 517 U.S. 549 (suit for damages authorized by WARN act); Oregon Advocacy Ctr. v. Mink (9th Cir. 2002), 322 F.3d 1101, 1111 (suit for damages authorized by PAMII act). However, in cases of pure associational standing, an association is limited to relief that, "if granted, will inure to the benefit of those members of the association actually injured." Addiction Specialists Inc. v. Twp. Of Hampton (2005), 411 F.3d 399. Thus, Hunt only applies, and the third prong of Hunt is discretionary insofar as the relief sought is injunctive, as opposed to a suit for damages. Lane Toledo, supra.7

d.         Other prudential limitations on associational standing

i.          Identical claims

Some courts have declined to recognize associational standing where an organization's claims are identical to the individual's. Access 4 All Inc. v. Trump Int'l Hotel and Tower Condo. (S.D. N.Y. 2006), 458 F. Supp. 2d 160. This limitation on standing is a corollary to the well known prudential limitation that a plaintiff may not rest a claim for relief on the rights of a third party. In Trump, plaintiff organization contended its claims were not identical to plaintiff individual's claims because there were 31 ADA violations at defendant's property, in addition to those complained of by the individual plaintiff, which affected all of its members and that the organization was in a better position to enforce compliance than the individual. The court noted that a disabled plaintiff may not sue for any violation of the ADA Accessibility Guidelines (ADAAG) regardless of whether it affects him or her personally. A plaintiff only has standing to sue for his or her actual injury. Where the alleged violation does not affect a plaintiff's disability, that plaintiff is not injured and therefore has no standing to bring suit. Where the only injured member of an organization is the named plaintiff, and the organization does not put forth any evidence that additional claimed ADA violations were known to and affected other members of the organization, than the organization's injury is identical to the plaintiff's and should be dismissed.

ii.          Vexatious Litigation

At least two courts have dismissed cases for lack of standing where the named plaintiff was a serial ADA litigant. See Rodriguez v. Investco, LLC (M.D. Fla. 2004), 305 F. Supp. 2d 1278 (plaintiff involved in approximately 200 ADA cases); Molski v. Mandarin Touch Rest. (C.D. Cal. 2004), 347 F. Supp.2d 860 (plaintiff involved in more than 300 cases.); but see Access 4 All, Inc. v. Trump International Hotel and Tower Condo. (S.D. N.Y. 2006), 458 F. Supp. 2d 160 (sufficient facts produced to overcome vexatious litigation claim where organization dedicated to ADA compliance would legitimately be involved in numerous ADA lawsuits and plaintiff was a frequent business traveler to that area).

B.         Standing of Individual Plaintiff

Under the first prong of Hunt, in order for an organization to successfully assert associational standing, it must be able to prove that its individual members would have standing to sue in their own right. Individual plaintiffs must prove the following to have standing to sue for injunctive relief under Title III of the ADA:

1.         ADA Standing Requirement - Disability

The ADA grants a private right of action to individuals subject to discrimination on the basis of disability or who have reasonable grounds for believing they are about to be subjected to disability-based discrimination. 42 U.S.C. � 12188(a)(1). Disability is defined as: 1) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; 2) a record of such an impairment; or 3) being regarded as having such impairment. 42 U.S.C. � 12102.8

2.         Constitutional Standing Requirement - Likelihood to Return

In order to obtain Article III standing (the injury in fact prong) for prospective (injunctive) relief, the plaintiff must "establish a real and immediate threat that he would again be [the victim of the allegedly unconstitutional practice.]" City of Los Angeles v. Lyons (1983), 461 U.S. 95, 75 L. Ed. 2d 675; Access 4 All, Inc. v. OM Mgt., supra. In determining whether injury is concrete and particularized for the purpose of an ADA Title III claim, the court must consider the plaintiff's likelihood of returning to the public accommodation. See Absecon Hospitality Corp., supra.   Although a plaintiff "need not engage in the 'futile gesture' of visiting a building containing known barriers that the owner has no intention of remedying," he must at least "prove knowledge of the barriers and that [he] would visit the building in the imminent future for those barriers." Steger v. Franco, Inc. (8th Cir., 2000), 228 F.3d 889; see also Pickern v. Holiday Quality Foods Inc. (9th Cir., 2002), 293 F.3d 1133. "Some day intentions - without any description of concrete plans, or indeed even any speculation of when the some day will be - do not support a finding of the actual or imminent injury." Lujan at 564.

Courts typically look to the following factors to determine if a plaintiff is likely to return: 1) the plaintiff's proximity to the defendant's place of public accommodation; 2) the plaintiff's past patronage of the defendant's place of public accommodation; 3) the definitiveness of the plaintiff's plan to return; and 4) the plaintiff's frequency of travel near the defendant. 539 Absecon Blvd., supra. At least one court has held that application of this test at the pleading stage is inappropriate. Wilson v. McDonalds (S.D. Cal. 2006), Case No. 06CV1046 WQH (NLS), 2006 U.S. Dist LEXIS 94468.

Courts have provided little guidance as to how these factors should be evaluated, and are inconsistent in evaluating the importance of the various factors. D'Lil v. Best Western Encina Lodge & Suites (C.D. Cal. 2006), 415 F. Supp. 2d 1048. However, the following is a brief description of how some courts have analyzed the various factors:

Factor 1: Likelihood of future harm decreases as the distance between a plaintiff's residence and the facility increases. Wilson v. Costco Wholesale Corp., supra. Courts have consistently held that a distance over 100 miles weighs against finding a reasonable likelihood of return. Jones v. Sears Roebuck & Co (E.D. Cal. 2006), Case No. 2:05-cv-0535-MCE-KJM, 2006 U.S. Dist. LEXIS 86613.

Factor 2: In addition to subsequently visiting the defendant's facility, a history of patronage can be established by visiting other stores in the chain or showing a preference for the specific chain. Jones, supra; Wilson v. Costco Wholesale Corp., supra.

Factor 3: A definitive intent to return to a property must generally be set forth before filing the complaint. Wilson v. Costco Wholesale Corp., supra; D'Lil v. Best Western Encina Lodge & Suites, supra.; 539 Absecon Blvd., supra. However, because visiting a store is not the type of event that requires advance planning, specific plans are not dispositive. Jones, supra. A plaintiff's extensive history of ADA litigation is relevant to the determination of the likelihood of return. Harris v. Stonecrest Care Auto Ctr. (S.D. Cal. 2007), Case No. 04CV2593-LAB (LSP), U.S. Dist. LEXIS 8805; Jones, supra; Wilson v. Costco Wholesale Corp., supra; D'Lil, supra.

Factor 4: Travel to an area a few times a year is insufficient to confer standing. Jones, supra; Wilson v. Costco Wholesale Corp., supra.

Cases where standing was not established for failure to prove likelihood of return include: Harris v. Stonecrest Care Auto Ctr., supra (where Shell station was hundreds of miles from plaintiff's home, plaintiff could not remember having patronized the station before and had no definite plans to return to San Diego, plaintiff lacked standing to bring Title III claim); Jones, supra; Wilson v. Costco Wholesale Corp., supra; D'Lil, supra; Access 4 All, Inc. v. Wintergreen Commer. P'ship, Ltd. (N.D. Tex. 2005), Civ. Action No. 3:05-CV-1307-G, U.S. Dist. LEXIS 26935; Harris v. Del Taco, Inc. (C.D. Cal. 2005), 396 F. Supp. 2d 1107; Brother v. Tiger Partner, LLC (M.D. Fla. 2004), 331 F. Supp. 2d 1368 (held that plaintiff did not have ADA standing when he lived 280 miles away from the defendant's hotel, only traveled to the area once or twice a year, and lacked any "continuing connection" to the property); Rosenkrantz v. Markopoulos (M.D. Fla. 2003), 254 F. Supp. 2d 1250 (holding that plaintiff did not have a plausible intention to return to property because he lived far from the property and his travel to the area where it was located was "irregular, occasional and infrequent."); Steger v. Franco, Inc. (8th Cir. 2000), 228 F.3d 889 (plaintiffs' claims were properly dismissed where those plaintiffs presented no knowledge of the building's barriers, whether they had ever been in the building and no evidence of likelihood to visit the building in the imminent future).

However, one Ohio Court has permitted standing despite a defendant's challenge that the record provided no evidence that plaintiff actually intended to return to the premises.   Ohio's Southern District Court, conferred standing to the plaintiff holding the following:

***the defendants' lack of ADA-compliance was (and still is) occurring at the time Mr. . . Young filed the complaint. Instead of forcing Mr. Young to make reservations at the hotel and continually visit the hotel (only to be repeatedly subjected to the problems that he faced as a disabled individual), the Court sees nothing improbable about the proposition that the hotel's continuous and pervasive noncompliance is sufficient to establish a concrete and real injury sufficient to establish standing. OM Management, supra.

3.         Constitutional Standing Requirement - Violation Must Affect Plaintiff's Injury

A disabled plaintiff may not sue for every ADA violation, regardless of whether it is related to his or her disability. Steger v. Franco, Inc. (8th Cir. 2000), 228 F.3d 889 (blind plaintiff did not have standing to sue for ADA violations in a building that did not affect the blind); Access 4 All Inc. v. Trump Int'l Hotel and Tower Condo, supra. To meet the injury in fact requirement, the plaintiff must be among the injured. Id. Where the alleged violation does not affect a plaintiff's disability, that plaintiff is not injured and therefore has no standing to bring suit. Id.

However, the disabled plaintiff is not required to encounter all of the barriers in a building in order to obtain effective relief. Steger, supra. If a plaintiff encounters one barrier related to his disability in a particular building, he has standing to seek relief for any ADA violations in that building that affect his specific disability. Id.

Thus, a defendant should ascertain the type of disability alleged by plaintiff and whether or not the barriers alleged in the complaint are at all related to the alleged disability. Also, although Plaintiffs are not required to have encountered every barrier that may be found by her expert's review of defendant's premises, plaintiff is still required to encounter at least one of each barrier alleged.

4.         Constitutional Standing Requirement - Redressability

Defendants may also argue that plaintiff is not really a bona fide patron of the premises, but a serial litigant who is not entitled to standing. Where a plaintiff's sole purpose in visiting an establishment is to check for ADA violations, that plaintiff is simply a tester rather than a bona fide patron. Harris, supra. Although the U.S. Supreme Court has held that a tester has standing in the civil rights context, there is no such authority "showing that Title III of the ADA was intended to create such broad rights against individual local businesses by private parties who are not bona fide patrons, and are not likely to be bona fide patrons in the future." Id. In Harris, the court held that "an individual plaintiff's contact with a local establishment made solely for the purpose of bringing a claim under Title III of the ADA, without more, is insufficient to confer Article III standing to seek injunctive relief." Such a tactic fails to meet the redressability requirement under Article III standing, as once litigation is complete it is unlikely such a plaintiff will return to the establishment, so that the injury plaintiff suffered would not likely be redressed by a favorable decision. Harris, supra. There are a slew of very recently filed Ohio cases wherein the individual Plaintiff is described as a "tester."

III.        Statute of Limitations for Injunctive Relief Claims Under Title III of the ADA

The ADA does not contain a specific statute of limitations. Franklin v. Lucas Cty. Children Svc's Bd. (N.D. Ohio 2006), Case No. 3:05CV7102, 2006 U.S. Dist. LEXIS 15605; Deck v. City of Toledo (N.D. Ohio 1999), 56 F. Supp. 2d 886. Individual states are left to determine the appropriate limitations period for ADA actions. Deck, supra. The U.S. District Court, Northern Division has adopted a two-year statute of limitations for ADA claims brought in Ohio. Franklin, supra.; Deck, supra.

The general rule is that statutes of limitations are triggered at the time the alleged discriminatory act occurred. Deck, supra. In the case of a continuing violation, the limitations period is tolled. Id.  Thus, a discriminatory incident which occurs beyond the limitations period is actionable when the plaintiff is challenging an unlawful practice that continues into the limitations period; such a claim is timely filed when it is filed within the limitations period of the last asserted occurrence of that practice. Id. The 3 prong test for determining whether a continuing violation exists is as follows: 1) the defendant's wrongful conduct continued after the precipitating event that began the pattern; 2) the injury to plaintiff must continue after the event; 3) further injury to the plaintiffs must have been avoidable if the defendants had at any time ceased their wrongful conduct. Tolbert v. Ohio Dept. of Transp. (6th Cir. 1999), 172 F.3d 934.

IV.        Exhaustion of Administrative Remedies and Title III of the ADA

Title III of the ADA specifically adopts Section 2000 a-3(a), the enforcement provision of Title VII. See 42 U.S.C. � 12188. However, Section 2000 a-3(a) is the provision entitling an aggrieved person to seek injunctive relief. It is Section 2000a-3(c) of Title VII which requires an aggrieved party (e.g. an employee) to pursue administrative remedies prior to suit. The question is thus whether Congress intended to incorporate Section 2000a-3(c) into Title III of the ADA.

This was an issue before the U.S. District Court, Southern District of Ohio in Guzman v. Denny's Inc. (S.D. Ohio 1999), 40 F. Supp. 2d 930. The court held that a plaintiff was not required to exhaust administrative remedies by filing a complaint with the OCRC before instituting a civil action. The basis for this decision was one of statutory interpretation. The court concluded that because Congress specifically mentioned Section 2000-a3(a), that by not mentioning Section 2000a-3(c) with regard to Title III, Congress meant to exclude it.

The Sixth Circuit has yet to rule on this issue. However, those appellate courts which have ruled on the issue are in accord with the Southern District of Ohio. See Ass'n of Disabled Americans v. Neptune Designs, Inc. (11th Cir. 2006), 469 F.3d 1357; Botosan v. Paul McNally Realty (9th Cir. 2000), 216 F.3d 827. The Neptune Designs court addressed the issue in terms of giving pre-suit notice of violations directly to the defendant. The court held that a district court may not dismiss a suit for lack of pre-suit notice. However, the court "may consider the plaintiff's failure to ask for or to accept voluntary compliance prior to suit" as an indication of whether the plaintiff acted in bad faith, has been unduly litigious, or has caused unnecessary trouble and expense. The court may properly consider such factors in setting the amount of attorney's fees.

SAMPLE LIST OF OHIO ADA DECISIONS

Disabled Patriots of America, Inc. v. Odco Investments, Ltd. (N.D. Ohio March 27, 2006), Case No. 3:04CV7399, 2006 U.S. Dist. LEXIS 13158. (Plaintiffs are not entitled to summary judgment where they failed to provide evidence of specific cost estimates, evidence that the proposed alterations are readily achievable or defendant's financial resources)

Access 4 All, Inc. V. OM Management, LLC (S.D. Ohio May 15, 2007), Case No. 2:06-CV-0374, 2007 U.S. Dist. LEXIS 35429 (standing)

Disabled Patriots of America, Inc. v. Genesis Dreamplex, LLC (S.D. Ohio August 18, 2006), Case No. 3:05-CV-7153, 2006 U.S. Dist. LEXIS 58174 (reasonableness of attorney fees).

Disabled Patriots of America, Inc. v. S & S Realty, Ltd. (N.D. Ohio May 22, 2006), Case No. 1:05 CV 2496-CAB, 2006 U.S. Dist. LEXIS 32072. (Consent decree).

Bonnie Belevender v. Magi Enterprises, Inc. (N.D. Ohio February 28, 2007), Case No. 3:06 CV 1595, 2007 U.S. Dist. LEXIS 13582 (Association had no standing for failure to meet the requirements, an estate of disabled man had no standing to sue for injunctive relief under Title III of the ADA because his past injury cannot be redressed and the court could not "adjudicate disputes which are moot." The executer likewise lacked standing because she was not disabled or injured).

Disabled Patriots of America, Inc. v. Lane Toledo, Inc. (N.D. Ohio 2004), 325 F. Supp. 2d 837 (conferring organizational standing to DPA).

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1 Crain's Cleveland Business, Vol. 28, No. 19, May 14-20, 2007, attached hereto.

2 See generally Articles of Incorporation filed in various DPA cases.

3 The express terms of the statute hold a landlord liable for noncompliance. Botosan v. Paul McNally Realty (9th Cir. 2000), 216 F.3d 827. Any contractual limitation on responsibility between the landlord and tenant of a public accommodation has no effect on third parties. Id. Thus, both the property owner (lessor) and its tenants can be held liable for ADA violations. Id. However, property owners (lessors) may seek indemnification from the tenant if the lease agreement so provides. Id.

4 This is the standard for buildings designed or constructed for first occupation before January 26, 1996. 28 CFR 36.401. Access 4 All Inc. v. Trump Int'l Hotel and Tower Condo. (S.D. N.Y. 2006), 458 F. Supp. 2d 160. There are different standards for compliance with the ADA depending on when construction takes place. Ass'n for Disabled Ams., Inc. v. Key Largo Bay Beach, LLG (S.D. Fla. 2005), 407 F. Supp. 2d 1321. There are special standards of compliance for alterations made to an existing facility after January 26, 1992. 28 CFR 36.402. New construction and alterations to existing structures must comply with the ADA Accessibility Guidelines (ADAAG). 28 CFR 36.406; 28 CFR 36 Appendix A.

5 Neither the United States Supreme Court nor most of the Circuit Courts have specifically addressed the issue of Article III standing in the context of the ADA. D'Lil v. Best Western Encina Lodge & Suites (C.D. Cal. 2006), 415 F. Supp. 2d 1048

6 Likelihood of return was not analyzed beyond citing that plaintiff was a resident of Ohio and defendant's properties were located in Ohio.

7 Under Title III of the ADA, only injunctive relief and attorney's fees and costs are available. 42 U.S.C. � 12188; Access 4 All Inc. v. Absecon Hospitality Corp. (D. N.J. 2006), Civ. Action No. 04-6060 (JEI), 2006 U.S. Dist. LEXIS 79264;Dryer v. Flower Hosp. (N.D. Ohio 2005), 383 F. Supp.2d 934.

8 The disability analysis is extensive in and of itself, and as such, will not be covered in these materials. However, it is worth noting here that whether or not the Plaintiff is a qualified individual with a disability is an issue with potential for challenge.

Juergens, Julie L.

Gallagher Sharp
[email protected]

www.gallaghersharp.com

Julie Juergens joined Gallagher Sharp in 2000, became a partner in 2005, and is active in the firm's Business and Employment and Professional Liability Practice Groups. In 2006 she was named an Ohio Super Lawyer Rising Star.
Ms. Juergens focuses her practice on employment litigation. She represents businesses, insurance companies and individuals in state, federal, and bankruptcy courts, and before the EEOC, Ohio Civil Rights Commission, and the Department of Labor. She also works with employers to adopt policies and procedures to avoid liability and is consulted by employers relative to employment decisions. She has defended employers regarding all claims relating to employment including discrimination, harassment, whistle-blowing, breach of contract, and violations or enforcement of non-compete agreements.

Ms. Juergens has experience handling a wide variety of business cases including breach of contract, consumer statutory violations, copyright litigation, fraud and defamation. She defends lawyers and other professionals in claims involving malpractice and errors and omissions.

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