Attorneys Are Profiting From the Americans With Disabilities Act

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Tuesday, 23 September 2014 17:00

Local Small Businesses Say Unscrupulous Attorneys Are Profiting From the Americans With Disabilities Act—at Their Expense

http://www.cvindependent.com/index.php/en-US/news/local-issues/item/1631-a-handicapped-system-local-small-businesses-say-unscrupulous-attorneys-are-profiting-from-the-americans-with-disabilities-act-at-their-expense?tmpl=component&print=1

Written by Brian Blueskye

The Americans With Disabilities Act of 1990 is landmark legislation that prevents discrimination on the basis of disability and requires public accommodations for the disabled.

However, the act includes loopholes and flaws, as is the case with many good laws.

In most states, the Americans With Disabilities Act allows people to file a lawsuit against a business that does not meet disability regulations; however, the only result is that the business must remedy the violation(s).

That’s not the case in California. Due to the state’s Unruh Civil Rights Act, enacted in 1959, those with disabilities can file lawsuits and receive monetary damages. According to the California Bar Association, ADA lawsuits in California represent nearly half of the ADA litigation nationwide.

In Palm Springs, it appears that a couple of individuals and their attorneys are taking advantage of these facts.

A woman by the name of Diane Cross, represented by San Diego attorney David Wakefield, has recently filed various ADA lawsuits in the Coachella Valley—mostly against small hoteliers in Palm Springs, although she is also suing Airport Quick Car Wash in Palm Springs, and Villa Bakery in Cathedral City.

Another man, Chris Langer, represented by another San Diego attorney, Mark Potter, is also filing local ADA lawsuits.

John-Michael Cooper, president of the Small Hotels of Palm Springs (SHoPS) and the general manager of the Palm Springs Rendezvous hotel, said some small hoteliers in the organization all of a sudden started getting served with lawsuits in the spring.

“In the span of seven days, three different member hotels e-mailed in the same loop, asking, ‘Has anyone else been served for their parking lots?’” Cooper said. “It was then that … we started realizing it was the same lawyer and the same plaintiff.”

Cooper said the hoteliers banded together to figure out how to address the lawsuits—and head off future litigation.

“Once we realized this wasn’t just a fluke or … just one person out of compliance, we realized anyone could be threatened by this,” he said.

Representatives from various hotels attended a meeting that included Palm Springs City Attorney Douglas Holland, Cooper said. Also in attendance at that SHoPS meeting was Palm Springs City Councilwoman Ginny Foat, who has been sued because of an alleged ADA violation at interior-design store Trend House, which sits on her property. Cooper said they soon realized the plaintiffs and their attorneys were apparently using certain tactics on multiple businesses, such as calling and inquiring about handicapped parking spaces—and then driving by if there was any hesitation regarding the answer.

As of this writing, lawsuits have been opened against businesses including the Garden Vista Hotel, the Desert Lodge, Hotel California and Casa Cody. The Hyatt Palm Springs, the Hard Rock Hotel, and the Ace Hotel are also being sued.

 

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Attorneys Are Profiting From the Americans With Disabilities Act part 2

Is there any merit to the claims of discrimination mentioned in the lawsuits of Diane Cross and Chris Langer? The answer to that question depends on who is asked.

Frank Tysen (left), the owner of Casa Cody, said he had just been served regarding a suit filed by Chris Langer when the Independent reached out to him.

Many of the lawsuits cite a lack of adequate handicapped parking spaces. Tysen took me outside of the Casa Cody with a tape measure and showed me that his parking spaces are just more than 14 feet in length. It would be almost impossible for him to make the spaces any longer: Cahuilla Road runs right up to the curb of the parking lot at his historic hotel.

“In order to have full legal parking for a handicapped space, you have to have about 18 feet,” Tysen said. “Because of the street width here, we don’t even have that much space in the parking lot.”

Tysen expressed concern about the harm these lawsuits could have on small hotels in Palm Springs.

“It’s a total racket,” Tysen said. “If the only way you can get compliance is to sue someone, that’s crazy.

“These guys have been doing this for a long time. They hit San Diego and other places, and now they’re hitting Palm Springs. It’s the same people and the same attorneys. They don’t even pay the filing fee, claiming they don’t even have the money to pay the filing fee. The point with that is if you don’t have the money to pay the filing fee, you probably don’t have $200 to stay in a hotel, so the whole thing is bull****.”

A trip to Riverside County Superior Court in Indio revealed that, sure enough, the filing fee—which is generally around $400—was waived in many, if not all, of these cases.

Diane Cross’ attorney, David Wakefield, did not respond to several inquiries via phone and e-mail from the Independent. Mark Potter also did not respond to the Independent.

Tysen explained that many of the older hotels in Palm Springs fall under the question of what’s considered “readily achievable” when it comes to ADA accessibility.

“Palm Springs is a perfect place for these people to go crazy because a lot of the places are older and grandfathered in by the city. For instance, they don’t require fences around the pool, because they weren’t there—but if you remodel your pool, you have to put a fence around it,” he said. “The second thing is a lot of our places are historic; the way these places are laid out … the city doesn’t bring them up to code, because you can’t, or you’ll end up destroying the whole place.”

John Pinkney, of the law firm Slovak Baron Empey Murphy and Pinkney, is representing many of the small hoteliers, at a reduced fee, in these ADA suits. He confirmed that “readily achievable” is often a good ADA defense—but that does not mean older or historic hotels are exempt from ADA requirements.

“There’s really not, per se, a grandfathering clause for these properties,” Pinkney said. “But some of these historic places … there is a defense available for them where they can demonstrate compliance would not be readily achievable. For instance, if you had a hotel that was built in the ’30s, in order to make it compliant, you’d have to completely rebuild it. We do have cases where we’ve raised those defenses.

“I think some people think, ‘I bought an older hotel; therefore, I’m immune from being sued.’ That’s really not the case.”

Pinkney also defended the Americans With Disabilities Act, even if some plaintiffs and their attorneys may be taking advantage of it in California.

“The ADA is well intentioned,” Pinkney said. “It’s obviously important to provide equal access for those with disabilities within the parameters of the ADA. Unfortunately, there are people out there who are gaming the system. I think that’s where small-business owners, who are struggling to make ends meet, especially during the lean summer months, are dealing with ‘drive-by lawsuits.’”

Lena Wade, an attorney who is working with Pinkney, mentioned that she has seen up to 30 lawsuits filed in one day by one plaintiff.

“So were they going to stay in all 30 hotels that day?” Pinkney quipped.

Pinkney said plaintiffs need to prove that they at least planned on going to a business that’s allegedly not ADA-compliant.

“You have individuals who are filing multiple lawsuits against hotels claiming that they were going to go and stay at that hotel, but they were denied equal access. Some of these are clearly ‘drive-by lawsuits,’ where somebody just drove by the facility, and noticed that there was not a specific placard that should have been there. Then they file the lawsuit and allege—under penalty of perjury—that they had the intent to stay at that hotel.”

Pinkney said that even if a small hotel can not “readily achieve” all ADA rules, that doesn’t mean the hotel is discriminating against a handicapped person or denying them service.

“If somebody comes to their hotel, and they’re disabled, they’ll make reasonable accommodations for them,” Pinkney said. “They will go out of their way to provide them with equal access. … The people filing the lawsuits (often) never even came through the door.”

John-Michael Cooper said he does not expect the hotel he manages, Rendezvous, to be sued. He said ADA compliance goes beyond having proper handicapped parking. The Hard Rock Hotel in Palm Springs isn’t being sued over a handicapped space, for example, but because the entrance allegedly does not comply.

“I have a handicapped spot in my parking lot, so I probably won’t be sued. I know my rooms are accessible, and I know the level of accessibility that I have,” Cooper said. “There are a lot of different levels of accessibility. Being accessible not only means that you need a parking lot with the correct ramps, and the correct accessibility to the entrance to the hotel; you have to have equal, if separate, access. The people have to be able to park … in the front of your hotel; they have to be able to get out; they have to be able to get through the front door, and they have to be able to get to your front desk.”

So what is a small hotel owner such as Frank Tysen supposed to do? While some businesses have settled these suits, Tysen said he’s going to fight.

“Palm Springs is damn lucky that there are enough fools around that like the lifestyle of a small hotel,” Tysen said. “I get paid about $2,000 a month, and that’s it, because there is no money left, because you have to keep upgrading the rooms or the hotel in general. Small hotels are really a labor of love. During the summer, the rates are sliced down to next to nothing, and this is why a lot of hotels have a hard time getting loans from banks here, because they don’t want to invest in a seasonal business. Big hotels here are supported by their chain, but for the small hotels, it comes out of the people who own it.”

Ron De Klerk, the general manager of the Skylark in Palm Springs, said he's opting to settle a suit filed against the hotel by Diane Cross.

"Obviously, we want to settle to get it out of our books and out of our head," De Klerk said.

He mentioned getting advice from another local hotelier who opted to fight a lawsuit—and wound up spending $40,000 in legal fees for a lawsuit that could have been settled for around $20,000.

“In his advice to me, he said, ‘Settle for as little as you can, because it’s cheaper than hiring a lawyer.’ It’s absolutely true. A good ADA lawyer is anywhere from $400 to $600 an hour, sometimes higher. On any typical case, you’re looking at about 20 hours (just to start). Suddenly, you’re already at $10,000.”

Pinkney didn’t offer specifics on the chances small hoteliers have to win their cases, but he echoed Tysen’s comments.

“People come here to the Coachella Valley to invest in this community and start a business. In some cases, they’re investing their life savings to start a small hotel, and they spend a lot of money to make sure their business is ADA-compliant, only to be sued because the plaintiff alleges that something was off a couple of inches, or a sign wasn’t exactly right,” he said. “It’s very disheartening for these folks, but we’re aggressively fighting these cases where we feel they’re unwarranted.”

There appears to be no end in sight regarding these lawsuits. In 2012, Gov. Jerry Brown signed into law Senate Bill 1186, a reform bill that was supposed to curb ADA-related lawsuits. However, the bill was limited. It reduced the statutory damages per violation in some cases from $4,000 to $1,000 or $2,000. (Of course, plaintiffs and their attorneys can also sue for attorneys’ fees.) It also banned “demand letters” that were sent to businesses that sought money in exchange for not filing a lawsuit.

Critics of Senate Bill 1186 say the law didn’t work: California still leads the nation in ADA lawsuits.

Some have proposed giving small businesses an opportunity to correct alleged disability violations before a lawsuit can be filed. Pinkney said he thinks that’s a good idea.

“There are legitimate people out there with legitimate claims,” Pinkney said. “That’s what the ADA is designed for: People who legitimately experience impaired access. … Situations where the plaintiffs aren’t motivated by compliance and are instead motivated by financial reward for themselves and their attorney—that’s what people find offensive.”