Judge: Disability Testers Can Sue Without Visits

BALTIMORE – A disabled person with no intention of visiting Baltimore may nevertheless sue a hotel in the city for allegedly violating a federal law requiring that it provide on reservation websites details of its accommodations for disabled guests, a federal appeals court ruled Wednesday.

In its published decision, the 4th U.S. Circuit Court of Appeals said someone merely visiting the sites to test a hotel’s compliance with the Americans with Disabilities Act (ADA) has standing to bring a lawsuit if a violation is subsequently alleged.

In such cases, the “tester” has allegedly been deprived a statutory right to information and thus suffered an “informational injury” that gives them standing to sue the hotel regardless of their travel plans, the 4th Circuit said in its 3-0 ruling.

The court’s decision revives Deborah Laufer’s claim that Sleep Inn & Suites Downtown Inner Harbor owned by Naranda Hotels LLC violated the ADA’s Hotel Reservation Regulation provision by not listing its accommodations for disabled guests on its websites provided by booking services, such as booking.com and expedia.com.

U.S. District Judge Stephanie A. Gallagher had dismissed Laufer’s lawsuit, saying the Floridian lacked standing because she had no intention of visiting Baltimore, where her federal claim was filed.

But the 4th Circuit said the plaintiff’s intent is irrelevant when the challenge is based on information the defendant was legally required to provide.

The appeals court likened Laufer’s claim of informational injury to the claim by Sylvia Coleman, a Black woman who posed as a would-be tenant of Havens Realty in Virginia and alleged she was falsely told no apartments were available for rent, in violation of the 1968 Fair Housing Act. In 1982, the U.S. Supreme Court held in Havens Realty Corp. v. Coleman that she had standing to sue despite her lack of intent to rent because the law barred falsely telling someone due to their race that housing was unavailable.

“It matters not that Laufer is a tester who may have visited Naranda’s hotel reservation websites to look for ADA violations in the form of noncompliance with the Hotel Reservation Regulation, and without any plan or need to book a hotel room, just as it mattered not that the Black plaintiff in Havens Realty was a tester who ‘may have approached (defendant Havens Realty) fully expecting that (she) would receive false information (in contravention of the Fair Housing Act), and without any intention of buying or renting a home,’” 4th Circuit Judge Robert B. King wrote, quoting from the Supreme Court decision.

“Crucially, although the Hotel Reservation Regulation is designed ‘to reasonably permit individuals with disabilities to assess independently whether a given hotel or guest room meets his or her accessibility needs,’ nothing in the Hotel Reservation Regulation or elsewhere in the ADA expressly requires an intention to book a hotel room to prove a discriminatory failure to provide accessibility information,” King added in sending Laufer’s claim back to district court.

Laufer’s attorney, Thomas B. Bacon of Orlando, Florida, said the 4th Circuit issued “a positive decision that helps civil rights advocates under the Americans with Disabilities Act.”

Steven J. Parrott, Naranda Hotels’ attorney, said no decision has been made regarding an appeal. He voiced confidence that his client, which denies the alleged ADA violation, would be victorious in district court.

“We think we have a good chance to win on the merits,” said Parrott, of counsel at DeCaro, Doran, Siciliano, Gallagher & DeBlasis LLP in Bowie.

Laufer, who often uses a wheelchair due to difficulty walking, alleges that Sleep Inn & Suites Downtown Inner Harbor’s reservation websites fail to sufficiently “identify and describe accessible features in the hotels and guest rooms” as required by the Hotel Reservation Regulation. Because she uses a wheelchair, Laufer says she needs passageways free of obstruction; wide doorways; and door knobs and faucets low enough to reach while sitting.

Laufer seeks a court order that the hotel comply with the ADA’s Hotel Reservation Regulation and an award of attorney’s fees and court costs.

Naranda Hotels has denied the alleged ADA violation.

Laufer has filed similar federal lawsuits against hotels nationwide, with varying success on the standing issue.

The Boston-based 1st U.S. Circuit Court of Appeals, like the 4th, has ruled that Laufer has standing despite having no intention of visiting the cities where the hotels she sued are located. But the New Orleans-based 5th and Denver-based 10th Circuit Courts of Appeals have ruled she lacks standing as a mere tester.

King was joined in the Richmond, Virginia-based 4th Circuit’s opinion by Judges Stephanie D. Thacker and Pamela A. Harris. The 4th Circuit rendered its decision in Deborah Laufer v. Naranda Hotels LLC, No, 20-2348.

The 1st Circuit’s decision affirming Laufer’s standing has been appealed to the U.S. Supreme Court. The justices have not decided whether they will hear the appeal in Acheson Hotels LLC v. Deborah Laufer, No. 22-429.

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