Disabled file lawsuits in droves to force ADA compliance

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Disabled file lawsuits in droves to force ADA compliance

http://www.ocala.com/news/20161001/disabled-file-lawsuits-in-droves-to-force-ada-compliance

Litigators force ADA compliance, but often collect hefty legal fees, leaving some business owners wondering about the motivation behind the lawsuits.
Paul Cakmis said his 43rd Street Deli has gone nearly 35 years at several locations without a complaint about accessibility from disabled customers, but now he is out $32,000 in renovations and attorney costs after the restaurant was one of 10 businesses sued by a local woman this year under the Americans With Disabilities Act.

Nine of those lawsuits and another five from a Monroe County resident were filed against Gainesville businesses this year over ADA compliance. Both of the plaintiffs also filed lawsuits against businesses in other jurisdictions.

Such ADA Title III lawsuits over accommodations in public places and businesses have proliferated nationwide in recent years, especially in South Florida, where nearly one in every five of the cases originates. Businesses have accused plaintiffs' attorneys of creating a cottage industry of drive-by lawsuits to collect fees with no real motivation to improve access for the disabled. Many of the cases are from a handful of attorneys and disabled clients who have filed hundreds of lawsuits.

Advocates for the disabled say the right to sue is necessary to ensure equal access to businesses that have had 26 years to comply with the law.

Wendy Deleo filed nine lawsuits against Gainesville businesses in U.S. District Court in the Northern District of Florida and one against a Reddick business in the Middle District between Feb. 3 and Sept. 7.

According to the lawsuits, Deleo is an Alachua County resident with total bilateral vestibular dysfunction, which is damage to the inner ear that causes balance and vision problems, who uses a walker for mobility.

She sued nine restaurants and a convenience store over issues such as a lack of designated handicapped parking spaces, too-narrow aisles, a lack of grab bars in restrooms and not enough clear floor space to maneuver.

The lawsuits included no other identifying information about Deleo and a message left at a residence with a listing for a Wendy Deleo was not returned. Her attorney, Debi Gheorge-Alten of Coral Springs, did not return a call for comment.

Deleo voluntarily dismissed several of the lawsuits and the case files don't indicate if the businesses came into compliance or paid a settlement to her attorney. Several businesses did not return calls or declined to comment.

Golden Buddha Restaurant is fighting back in court, accusing Deleo of fraud for saying a water heater is blocking access to the women’s restroom. They say it doesn't, and accuse her of being solicited by and colluding with her attorney to visit multiple facilities solely for the purpose of litigation.

The judge ordered the case to mediation.

Cakmis said nobody at 43rd Street Deli remembers Deleo, or anybody asking for help.

“That’s what bothered me the most,” he said. “We really go out of our way for the handicapped and the elderly who need help.”

The judge in the case granted the deli’s motion to deny fees to Deleo’s attorney, saying she failed to reply in a timely manner, but Cakmis said he still spent $32,000 between renovations to the 43rd Street location and fees to his attorney.

The renovations included tearing out cabinets in a hallway to ensure at least 4 feet of walkway, gutting a bathroom to create a large enough turning radius and putting in new fixtures such as handrails, plus hiring an ADA-certified architect, he said.

Cakmis said he thinks the lawsuits are a scam and he feels sorry for small businesses that won’t be able to afford legal fees.

“If I said exactly what I felt, I think I would stir up a can of worms, but I don’t feel it’s totally above board,” he said.

Govinda’s Bakery and Cafe made changes to comply with minor noncompliance issues and paid a cash settlement, said Carl Woodham, a partner in the vegetarian restaurant on Northwest 13th Street.

“We were advised it was better to settle,” he said. “As a startup, it’s difficult for us to pay this bill.”

Woodham also said nobody at the restaurant remembers Deleo and no one raised any issues or asked for help prior to the lawsuit.

“If someone had come and said, ‘You need another grab bar in your bathroom,’ we would have put it up right away,” he said.
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Several of the corrections were for issues that were allowed in prior years, in an old building, and were approved by the building department as recently as this spring, Woodham said.

Some of the businesses have used city building department approval as a defense.

City of Gainesville spokesman Bob Woods said the city enforces codes that are part of the Florida Building Code at the time of construction, which could change in later years.

Code Enforcement Manager Chris Cooper said his department will enforce ADA issues if there was an alteration to an approved site plan, but otherwise they refer complaints to the Department of Justice website at ADA.gov. Most of the complaints his office receives are for handicapped parking spaces that are moved or altered.

The other five lawsuits in Gainesville were filed by Francis Martinez, identified as a Monroe County resident who uses a mobility device due to knee and back problems that, according to separate lawsuits, were the result of an accident over 10 years ago and complications from multiple operations.

Martinez and his attorney, Jason Weiss of Coral Springs, also filed 14 lawsuits in the Middle District of Florida this summer. Weiss did not return a call for comment and Martinez couldn't be reached.

Earlier in the year, Martinez and a Michigan attorney filed nine lawsuits in Indiana and five in Michigan. Those lawsuits refer to Martinez as a resident of Ocean County, New Jersey.

The lawsuits refer to Martinez as a “tester” who visits public accommodations to check for barriers to access, takes legal action and returns to verify compliance.

According to the Gainesville lawsuits, he has also visited friends here at least three times per year for the past five years and intends to visit again.

Martinez visited all five Gainesville businesses July 23, submitting receipts for minor purchases such as bottled water and a box of Tic Tacs as evidence.

A majority of the complaints had to do with bathroom accessibility, such as toilets in the wrong place relative to a side wall or partition, lack of insulation under sinks, mirrors and soap and paper towel dispensers at improper heights, grab bars that were not between 33 and 36 inches above the floor, or failing to provide a coat hook.

In addition to bathroom complaints, Martinez also sued West End Golf Club over parking issues and Firehouse Subs in Butler Plaza for having a self-serve ice machine that exceeds a 48-inch reach.

Firehouse Subs countered that it made what modifications it could reasonably achieve, among other defenses, and asked to be awarded costs and legal fees. The case remains open and a spokeswoman for the sandwich chain declined to comment.

The local owner of the Cold Stone Creamery on Archer Road, who asked not to use his name, said he will make the fixes but can’t afford to pay an attorney.

An attorney for Circle K also declined to comment and the other Gainesville businesses sued by Martinez did not return calls.

The number of federal Title III lawsuits in the U.S. has more than doubled in five years, from 2,473 in 2010 to 5,379 in 2015 — up 118 percent — and has already exceeded last year’s total through September this year, with 5,570.

A report by the Seyfarth Shaw international law firm says a number of court rulings in recent years “bent over backwards to find that plaintiffs with no legitimate reason to visit a business, or intent to do so in the future, have standing to sue under Title III,” which was followed by a sharp increase in lawsuits.

The Wall Street Journal reported in 2014 that the lawsuits also came after the Justice Department released a set of compliance standards that detailed specifications such as the allowable slope of a wheelchair ramp, the exact height of towel dispensers in restrooms and a requirement for hotels with pools to have pool lifts.

Florida saw nearly four times the number of Title III lawsuits from 2010 to 2014 when cases jumped from 403 to 1,593 before declining to 1,378 last year. So far this year, 1,351 cases have been filed, putting the caseload on a record pace.

South Florida alone has accounted for 22 percent of all cases in the U.S. since 2013.

North Florida businesses have been relatively unscathed by the Title III complaints, ranging from four to 24 lawsuits per year between 2010 and 2015, with the exception of 2014 when Howard Cohan filed 125 of the 134 total lawsuits, mostly against hotels and resorts.

Cohan, of Palm Beach County, has numerous disabilities, including spinal stenosis, according to the lawsuits, and has filed 1,127 ADA lawsuits statewide this decade, in addition to lawsuits in other states.

Weiss, Martinez’s attorney in the Gainesville cases, represented Cohan against several Chicago-area businesses and also represented a Florida man who sued 66 Colorado restaurants and other businesses.

Attorney Krista Collins of Gainesville has defended several of the businesses Deleo sued.

She said the ADA is a good law with a good aim of improving access and any of the businesses she represents need to comply if there are any issues.

“There are a lot of very specific requirements that most people are not going to be familiar with, especially if they’re in an older building. It’s possible to be in violation and not even know it,” Collins said.

She said businesses can avoid paying plaintiffs’ attorney fees if they make the fixes before a judge orders them to do so.

The law doesn't require businesses be notified of violations or given time to fix problems before a lawsuit is filed.

“I think that’s unfortunate,” Collins said. “If the goal is truly to fix problems with accessibility, then a notice provision would do wonders ... or giving small business owners an opportunity to address these issues before expensive and time-consuming litigation gets going would be a good thing.”

Three resolutions are pending in Congress that would require plaintiffs to notify businesses and give them time to comply before pursuing litigation.

Tony DePalma, public policy director of Disability Rights Florida, said the organization opposes any legislation that erodes the rights enumerated under the ADA, because the laws could have a chilling effect on people’s ability to correct violations.

“As an attorney myself, it’s unfortunate that loopholes and end-arounds are what attorneys will latch onto for income,” DePalma said. “More important to me and my organization are the rights protections.”

Tony Delisle, executive director for the Center for Independent Living of North Central Florida in Gainesville, said the high number of lawsuits raises a red flag, but all the attention on those who game the system puts disabled people in a bad light.

“It gives bad labels to people who are actually using the system the way it should be and making the lives of them and the people around them better, so when people do commit fraud against the system I think it’s horrible,” he said.

“I’d like to think it’s a very small minority of people trying to game the system and they’re ruining it for the rest of us,” he said.

Delisle said the Center for Independent Living often advocates for disabled people in businesses that are often unaware of ADA violations. The organization provides awareness and compliance training and most issues are resolved without lawsuits.

A lot of the complaints have to do with transportation and bus access or employees who won't take the extra time to assist someone who needs help to enjoy the same access as everyone else, he said.

Even when there isn't an ADA violation, he said his clients suffer from the attitudes they face.

“The main difficulty is the palpable frustration they can sense from employees for having to take extra time,” Delisle said. “People sensing that frustration, feeling they are a burden or a problem to be fixed, they come away from that with an emotional cost.”