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BMD Obtains Dismissal of ADA Title III Suit Against National Outlet Mall Chain

On January 12, 2018, Brennan, Manna & Diamond obtained the dismissal of an Americans with Disabilities Act (“ADA”) lawsuit filed against Tanger Factory Outlet Centers, Inc. in the U.S. District Court for the Western District of Michigan.

The suit, which was brought under Title III of the ADA, alleged that Tanger’s Byron Center, Michigan outlet mall contained barriers to access in violation of the ADA’s accessibility requirements. The plaintiff demanded prospective injunctive relief, including a retrofit of the entire mall, as well as expert witness and attorneys’ fees.

BMD moved to dismiss the case for lack of standing. Unlike a conventional suit, where a plaintiff seeking monetary damages must show a past injury to possess legal standing, an ADA Title III plaintiff must show a threat of prospective future harm in order to recover. Typically, this means that the plaintiff must plead (and prove) that he or she has reason to continue to visit the public accommodation in question and will continue to be injured by the facility’s alleged non-compliance with the ADA.

In its opinion granting Tanger’s Motion for Judgment on the Pleadings, United States Magistrate Judge Ellen S. Carmody held that the plaintiff’s Amended Complaint failed to adequately plead prospective future injury. In particular, the Court noted that “[v]ague and conclusory allegations that a plaintiff intends to return to a location […] are insufficient to maintain an ADA claim.” Applying this standard to the plaintiff’s Amended Complaint, the Court held that his “vague and conclusory statements regarding his alleged intent to return” to Tanger’s Byron Center property “are insufficient.” On this record, the Court found that the plaintiff “failed to sufficiently allege that he will suffer a future injury in the absence of injunctive relief.”

Recognizing the cost that ADA Title III actions pose to owners and operators of public accommodations, BMD’s experienced team of ADA litigators uses a proactive approach to seek the early and cost-effective resolution of cases before proceeding with expensive expert discovery. BMD was proud to obtain this result for Tanger Factory Outlets, one of the largest and most iconic outlet mall chains in the country.

BMD Partners Christopher Congeni and Daniel Rudary represented Tanger Factory Outlet Centers in this case. The citation for Court’s opinion is Saar v. Tanger Factory Outlet Centers, Inc., W.D. Mich. No. 1:17-cv-41, 2018 WL 387962 (Jan. 12, 2018).

Changes to Physician Assistant Statutes in Florida

In the last year, there have been many changes to the scope of practice and collaboration/supervision requirements for advanced practice providers such as APRNs and physician assistants in the state of Florida. In a previous Client Alert we discussed House Bill 607, which expanded the autonomous practice of APRNs providing primary care services in Florida.

Ohio Senate Bill 49 – Ohio Expands Lien Rights for Design Professionals

Effective September 30, 2021, Ohio granted limited lien rights to design professionals, including architects, landscape architects, engineers, and surveyors. Ohio Governor Mike DeWine signed Senate Bill 49 into law on July 1, 2021. This new law established a statutory right to lien commercial real estate by Ohio design professionals who, until now, could not file a lien for non-payment of professional services. Senator Vernon Sykes, a primary sponsor of Senate Bill 49, stated that the “legislation ensures that architects, engineers and other designers will get paid for their work, regardless of the outcome of their projects . . . It will support hardworking Ohioans by protecting the value of their labor . . ..”

Primary Care Practice Officially Defined in Florida for APRNs Practicing Autonomously

As many providers in Florida are aware, House Bill 607 (the “Bill”), which was passed in February of last year, gives certain APRNs in Florida the ability to practice autonomously. The only catch is that they must work in primary practice. When the Bill was initially passed, there was question as to what was exactly considered primary care, absent a definition from the Florida Board of Nursing. However, as of February 25, 2021, “primary care practice” has officially been defined.

Part II of the No Surprises Act

The Department of Health and Human Services (“HHS”) published Part II of the No Surprises Act on September 30, 2021, which will take effect on January 1, 2022. The new guidance, in large part, focuses on the independent dispute resolution process that was briefly mentioned in Part I of the Act. In addition, there is now guidance on good faith estimate requirements, the patient-provider dispute resolution processes, and added external review provisions.

Safer Federal Workforce Task Force - Guidance for Federal Contractors and Subcontractors

The Safer Federal Workforce Task Force has issued its Guidance for Federal Contractors and Subcontractors (Guidance). Note that the Guidance applies only to “covered contracts,” which are contracts that include the clause (Clause) set forth in Sec. 2(a) of Executive Order 14042 (Ensuring Adequate COVID Safety Protocols for Federal Contractors). The Federal Acquisition Regulatory Council (FARC) is to conduct rulemaking and take related action to ensure that the Clause is incorporated into federal contracts. Until that happens, federal contractors likely will not see the Clause in its contracts. Following is a broad summary of the Guidance.