Business

Surf-by Disability Plaintiff Loses Colorado Motel Appeal at 10th Circuit

The Elk Run Inn opened in Craig in 1948.
The Elk Run Inn opened in Craig in 1948. Courtesy the Loopers
Randy and Cindy Looper sold the Elk Run Inn in December 2020, but the retirees still had the shadow of a disability lawsuit related to the Craig motel hanging over their heads.

In August 2020, they'd received notice that they were facing a federal lawsuit over alleged violations of the Americans With Disabilities Act at the Elk Run, a 23-unit motel that typically catered to hunters and workers, with a full kitchen in every room. Florida resident Deborah Laufer was claiming that the Loopers didn't properly identify the accessibility of the motel on third-party reservation websites such as booking.com and hotels.com.

Title III of the ADA, which has been on the books for over three decades, requires private businesses, including motels, to be fully accessible to people with disabilities. The August 2020 complaint said that Laufer has a disability and uses a wheelchair to get around. Owing to the "discriminatory conditions" of the online reservation system for the Elk Run Inn, Laufer "has suffered, and continues to suffer, frustration and humiliation," the complaint stated, adding that the Loopers were "depriving [Laufer] the equality of opportunity offered to the general public."

The Loopers were stunned by the suit, because they believed that the circa 1948 Elk Run Inn was grandfathered into the ADA and did not need to provide ADA-accessible accommodations.

Now they can rest easy: On January 5, the 10th Circuit U.S. Court of Appeals upheld the January 2021 ruling of Judge Nina Y. Wang of the U.S. District Court of Colorado, who dismissed the lawsuit on the grounds that Laufer lacked standing to sue the Loopers, since she had no intent to stay at the Elk Run Inn.

"We’re real happy about it," says Cindy Looper.

Adds Randy, "I’m glad we decided not to pay them off and to fight it."

"What they said was, you never made concrete plans, you never made a hotel reservation. You basically said 'someday.' That’s not good enough to meet standing," says the Loopers' attorney, Stephen Rotter of the Workplace Counsel.
Randy and Cindy Looper owned the motel. - COURTESY THE LOOPERS
Randy and Cindy Looper owned the motel.
Courtesy the Loopers
Attorneys handling such suits often refer to such plaintiffs as "serial plaintiffs," and refer to disability lawsuits filed by serial plaintiffs who visit numerous businesses in a day to see if they're up to ADA standards as "drive-by" lawsuits. The online nature of Laufer's legal complaints has earned them another moniker: "surf-by" lawsuits.

These serial ADA lawsuits often result in quick settlements between the plaintiffs and the business owners so that the businesses can avoid the cost of hefty legal fees.

Laufer, who has filed hundreds of lawsuits across the country, including dozens in Colorado, has been called out for the serial aspect of her lawsuits before. "Plaintiff's approach to this ADA litigation appears to prioritize systematic, prolific filings over quality and depth of legal argument, churning out hundreds of near-identical lawsuits using cookie-cutter language irrespective of where the particular hotels are located, or any other party or jurisdiction-specific details," Judge Stephanie A. Gallagher of the U.S. District Court of Maryland wrote in a scathing December 2020 rebuke of Laufer and a Georgia lawyer representing her in another case.

In the Elk Run Inn case, Laufer was represented by attorney Tom Bacon. He likens his client to a Black person who wouldn't go to the back of the bus in the middle of the last century. Such lawsuits are necessary, he says, in order to compel businesses to become accessible in line with the ADA.

"It’s been my observation that this is one of those areas where everybody has widespread ignored the law until the lawsuits came out. And even then, if they’ve got a court that is going to protect them and say the plaintiff doesn’t have standing, they’re not going to fix it and make it accessible," Bacon says.

Bacon not only disagrees with the decision by the 10th Circuit Court of Appeals, but also rejects Wang's assertion that Laufer had no intention of visiting the motels she sued.

"My client, back in July, did actually go to Colorado. She went to all of those places and checked on all of those hotels. And all but two of them continued to ignore the law and continued to discriminate against disabled people and didn’t fix a thing on the belief that they would get a pass from the court," Bacon says.

But Laufer wasn't able to visit the Elk Run Inn: After the Loopers sold the place, the new owner turned the former motel into apartments.

Bacon and Laufer could appeal the decision to the U.S. Supreme Court. Bacon is currently litigating similar cases in other circuit appeals courts, and thinks he'd likely need a decision in his favor in one of those courts in order for the Supreme Court to take up the case. "An appeal that is based on a conflict between the circuits has a million times more likelihood of going up to the Supreme Court," he notes.

Rotter, who has been working on the Loopers' case largely pro bono, is ready to continue litigating if need be.

"At least what we want is a bright line or somewhat of a bright line to know what the guidance is so both individuals like Ms. Laufer and the hotels know what they need to do," he says. "The biggest issue here, the ADA regulations are a bit outdated for modern use. ... There’s these gaps where someone like Ms. Laufer can feel like she’s being discriminated against. I really think it’s up to Congress at this point to revisit the ADA standards, to modernize them, but also simplify them."

But Kevin Williams, legal director at the Colorado Cross-Disability Coalition, doesn't think the ADA needs to be changed. Although he agrees that Laufer didn't meet standing requirements under the law, he says he believes strongly in the importance of "testers " — those people who check to see if businesses or areas accessible to the public are complying with the ADA.

"The truth of the matter is that 31 years after the passage of the ADA, non-compliance is rampant," he says. "Many businesses are even advised by their attorneys to wait and see if they get sued before ever considering making any changes to either their facilities or information on their websites about those facilities and accessible features."
KEEP WESTWORD FREE... Since we started Westword, it has been defined as the free, independent voice of Denver, and we'd like to keep it that way. With local media under siege, it's more important than ever for us to rally support behind funding our local journalism. You can help by participating in our "I Support" program, allowing us to keep offering readers access to our incisive coverage of local news, food and culture with no paywalls.
Conor McCormick-Cavanagh is a staff writer at Westword, where he covers a range of beats, including local politics, immigration and homelessness. He previously worked as a journalist in Tunisia and loves to talk New York sports.