Recent changes to Minnesota law provide new defenses to lawsuits asserting that businesses have failed to provide adequate accessibility for persons with disabilities. Minnesota Governor Mark Dayton signed legislation on May 22, 2016 which amends the Minnesota Human Rights Act (“MHRA”) by adding a new Section 363A.331 on “Actions Involving Architectural Barriers that Limit Accessibility.” The amendments were the result of lobbying by the business community in response to a rash of disability accommodation lawsuits in recent years against small businesses across the state. Sometimes known as “drive by” lawsuits, these actions are typically brought by the same lawyer and the same plaintiff against dozens of small businesses, including restaurants, hotels, small retail establishments and professional service offices, among others, alleging that the businesses have failed to provide sufficient accessible parking spots, wheelchair ramps, pool lifts, or similar architectural accommodations under Title III of the federal Americans with Disabilities Act (“ADA”) or the MHRA. Lawyers in these cases attempt to wrest settlements of a few thousand dollars in exchange for a promise to remedy the alleged barrier, which is almost always less expensive than defending the suits. One of most prolific plaintiff’s attorney in this area has reportedly ceased practicing law recently, but others continue to assert such claims.
The amendments require any attorney representing a client who wishes to file a lawsuit alleging an accessibility violation to first send a notice to the business establishment or place of public accommodation. Minn. Stat. Section 363A.331, Subd. 2. The notice must, among other things: (1) cite to the law alleged to have been violated; (2) identify each architectural barrier that is the subject of an alleged violation and specify its location on the premises; and (3) provide at least 30 days for a response. The notice may not include a request or demand for money.
Businesses then have a defense to resulting litigation if the alleged architectural barrier has been removed, compliance is not readily achievable, or the alleged barrier does not violate accessibility requirements under the law. Minn. Stat. Section 363A.331, Subd. 4. In other words, the defendant has a 30-day safe harbor to fix the problem before being sued.
Determining whether compliance is “readily achievable” under state or federal law can be challenging, and defendants often look to experts to perform an audit or provide an opinion. The MHRA amendments acknowledge this reality by providing that, if a business has a compliance audit performed by a “certified professional” showing that the alleged barrier complies with accessibility requirements under law or that compliance is not readily achievable, the plaintiff has the burden to show that the audit’s conclusion is not correct. Id. “Certified professional” in this context is defined broadly as “a licensed, registered or otherwise certified professional with demonstrated knowledge of accessibility requirements under law.” Minn. Stat. Section 363A.331, Subd. 1 (c).
Disability accommodation claims may be brought in either state or federal court. The new Minnesota law purports to apply to claims alleging a violations of accessibility requirements established under federal law and regulations, specifically including 42 U.S.C. 12182 (the ADA) as well as the MHRA. State law generally cannot preempt federal law, however, so presumably the MHRA changes only apply to a claim asserted under the MHRA but alleging violation of standards established by the ADA.
In most cases, Title III of the ADA does not allow plaintiffs to seek or recover actual “damages.” Rather, an attorney asserting a violation can seek injunctive relief and attorneys’ fees. Some plaintiff-side lawyers in Minnesota have attempted to tack on a claim for damages for a “bias offense” under Minnesota Statute Section 611A.79. If the Legislature wanted to curb abuse in this area, it might have looked to this statute as well. Regardless, these 2016 amendments to the MHRA will be welcomed by small business owners.
About the Author:
Trepanier MacGillis Battina P.A. is a Minnesota business and litigation firm located in Minneapolis, Minnesota. Their attorneys can be reached at 612.455.0500.