mark handler
SAWHORSE
May 22, 2011 - 12:00am
By Roger Bull
Chris Fowler didn't know what the letters from the lawyers were even about. But he got four of them Friday afternoon, from attorneys as far away as Boca Raton, offering to defend him and the business he owns with this mother, Westside Automotive, in a lawsuit.
He didn't know he was being sued. But he's not alone.
Donna Smith, manager of Gorgi's 2 BBQ on Cassat Avenue, got her notice in the mail on Thursday.
Woody's Bar-B-Q, Lubi's Hot Subs, Pier One, Visionworks ... what they all have in common is that they've been the subject of lawsuits filed by one man.
Since early last year, Norman Hoewischer has filed 71 federal lawsuits against Jacksonville businesses alleging violations of the Americans with Disabilities Act. A dozen were filed last Monday alone.
The defendants are stores, restaurants, shopping centers, even automotive repair shops.
Each of the suits is similar. They all allege that Hoewischer, who uses a wheelchair, attempted but was prevented from fully using the facility. They further describe him as a "tester on behalf of himself and other persons with disabilities."
The complaints always have a list of purported violations, from the parking spaces out front to the toilet paper dispensers in the restrooms.
Sometimes the complaints are specific enough to deal in fractions of inches; other times they simply say "There are tables that are inaccessible."
Fowler said he was particularly surprised to be sued since he had spent a lot of money upgrading the business to meet what he thought were all the ADA standards.
The lawsuits don't ask for damages. Under federal law, the plaintiff is prevented from seeking monetary damages unless there has been actual injury.
But for a business, it can mean thousands of dollars in legal fees as well as repairs. And the settlement usually means the defendant pays the plaintiff's legal fees, which can run $10,000 or more.
Jack Gillrup, who retired as chief of Jacksonville's Disabled Services Division but is still an ADA consultant, said he has mixed feelings about these kinds of lawsuits.
"The dichotomy," said Gillrup, who uses a wheelchair, "is that he is making a difference for the good, he's getting businesses to be more aware. But he's also giving people with disabilities a bad name.
"For some of these small businesses, it's almost ruinous. Lawyers charge up to $10,000 and haven't done a thing but file cookie-cutter lawsuits. It's a gambit that's making somebody money hand over fist, and it shouldn't work that way."
Some lawyers aren't so sure about that.
"It all depends on who you ask," said Jeb Branham, who defended Lubi's on University Avenue against a Hoewischer lawsuit. "I think the business owners think it's a shakedown. I haven't met Hoewischer, but his attorney said he just wants to get the problems fixed."
William Henry Andrews, who represented the landlord in a Hoewischer lawsuit against Visionworks on Blanding Boulevard, said plaintiffs in cases like this often concentrate on one street, one neighborhood at a time. And, in fact, half of those sued Monday are on a short stretch of Cassat Avenue: Gorgi's, Award Shoppe, S&K Muffler, First Coast Auto Finance and JC's Fresh Seafood.
No warning
Gillrup and others said part of the problem is that there is no prior complaint about potential problems. The first word the business owner gets is a lawsuit.
"It seems to me that if their main interest was getting things fixed, they'd write a letter first and give the owner a chance to correct it," Andrews said. "I think most reasonable minds would think that."
The Times-Union did reach Hoewischer, who lives off Crystal Springs Road. But he would not discuss the lawsuits and instead referred all questions to Todd W. Shulby, a Fort Lauderdale attorney who has represented Hoewischer on dozens of suits.
Shulby, who has filed hundreds of ADA lawsuits for other plaintiffs as well, did not return several Times-Union phone calls over several days.
But Thomas Bacon, an attorney from Cooper City, defended the lawsuits.
"People have written letters until they're blue in the face, and the reality is that it never works," said Bacon, who represented Hoewischer in several cases, including those against Woody's Bar-B-Q on Powers Avenue and Popeye's Chicken and Biscuits on San Jose Boulevard.
"The only recourse these people have is the lawsuits," Bacon said. "And, frankly, I don't know if defense lawyers and defendants really believe that they would have brought themselves into compliance. I think it's disingenuous."
VIOLATIONS
Most of Hoewischer's lawsuits, no matter which attorney filed them for him, have page after page that are identical. They give the background of the law, say that he tried to visit the facility but was unable to have full access, etc.
But each also includes a list of alleged violations. Bacon said that with his cases, he doesn't take the plaintiff's word for it, but also sends out an investigator who takes photos of issues in question.
The suit against Hardee's on Blanding Boulevard, which was among the dozen Shulby filed Monday, lists 18, some as specific as "the toilet paper dispenser is too high and obstructs the side grab bar."
Fowler only has a dozen listed in the suit against Westside Automotive, the repair shop his grandfather opened 42 years ago. He looked over the list and acknowledged that he didn't have a blue parking curb out front, a wheelchair could not fit under the restroom sinks and there was no grab bar next to the toilet.
But the lawsuit also claimed the restrooms were inaccessible when the surface is flat and unobstructed all the way to the 36-inch-wide doors.
"I'm the last guy in the world who should be sued," he said. "I can give you the names of half a dozen handicapped customers who have been coming here for 20 years."
He also checked his files and said that Hoewischer had never been a customer there.
Businesses that are sued under the ADA usually hire their own consultants like Gillrup to see what needs to be done.
"Some of the allegations in the complaints are totally bogus," Gillrup said. "We went to one place last week where they'd alleged that there needed to be a counter 36 inches so that someone in a wheelchair could make change. They were right about some things, but the counter was right there. They couldn't have missed it if they were there."
THE COST
Bacon said that at least 90 percent of his cases are settled in the plaintiff's favor. The defendants agree to fix some, but often not all, of the issues raised in the suit.
"In most of these cases, there is virtually no litigation. But there are some things to fix, especially in these older facilities," said Guy Farmer, a Jacksonville attorney who represented the landlord in a Hoewischer suit against Pier One on Blanding Boulevard. "They don't have to fix everything, the law is more reasonable than that."
The work, he said, can cost anywhere from $500 to $500,000. But it usually includes the plaintiff's legal fees, which prompted U.S. District Judge Gregory Presnell of Orlando to once write in a ruling: "The current ADA lawsuit binge is, therefore, essentially driven by economics - that is the economics of attorney's fees."
And Farmer agreed.
"I do believe that it has become a bit of an industry for some attorneys," he said.
Bacon disagreed, noting that when Congress passed the law it didn't award any damages to the plaintiff or mandate that local code enforce it.
"So who's going to enforce it? Maybe these defense attorneys who complain about it could take these cases pro bono so they can sleep better at night," he said.
"We try to make these a no-hard-feelings case," Bacon said. "We're not accusing the defendants of wrongdoing or malice or prejudice. But it's simply that nobody enforces these laws except people like Mr. Hoewischer."
Roger Bull: (904) 359-4296
Read more at Jacksonville.com: http://jacksonville.com/business/2011-05-22/story/lawsuits-over-ada-compliance-valiant-campaign-or-small-business-harassment#ixzz1N5UATK4e
By Roger Bull
Chris Fowler didn't know what the letters from the lawyers were even about. But he got four of them Friday afternoon, from attorneys as far away as Boca Raton, offering to defend him and the business he owns with this mother, Westside Automotive, in a lawsuit.
He didn't know he was being sued. But he's not alone.
Donna Smith, manager of Gorgi's 2 BBQ on Cassat Avenue, got her notice in the mail on Thursday.
Woody's Bar-B-Q, Lubi's Hot Subs, Pier One, Visionworks ... what they all have in common is that they've been the subject of lawsuits filed by one man.
Since early last year, Norman Hoewischer has filed 71 federal lawsuits against Jacksonville businesses alleging violations of the Americans with Disabilities Act. A dozen were filed last Monday alone.
The defendants are stores, restaurants, shopping centers, even automotive repair shops.
Each of the suits is similar. They all allege that Hoewischer, who uses a wheelchair, attempted but was prevented from fully using the facility. They further describe him as a "tester on behalf of himself and other persons with disabilities."
The complaints always have a list of purported violations, from the parking spaces out front to the toilet paper dispensers in the restrooms.
Sometimes the complaints are specific enough to deal in fractions of inches; other times they simply say "There are tables that are inaccessible."
Fowler said he was particularly surprised to be sued since he had spent a lot of money upgrading the business to meet what he thought were all the ADA standards.
The lawsuits don't ask for damages. Under federal law, the plaintiff is prevented from seeking monetary damages unless there has been actual injury.
But for a business, it can mean thousands of dollars in legal fees as well as repairs. And the settlement usually means the defendant pays the plaintiff's legal fees, which can run $10,000 or more.
Jack Gillrup, who retired as chief of Jacksonville's Disabled Services Division but is still an ADA consultant, said he has mixed feelings about these kinds of lawsuits.
"The dichotomy," said Gillrup, who uses a wheelchair, "is that he is making a difference for the good, he's getting businesses to be more aware. But he's also giving people with disabilities a bad name.
"For some of these small businesses, it's almost ruinous. Lawyers charge up to $10,000 and haven't done a thing but file cookie-cutter lawsuits. It's a gambit that's making somebody money hand over fist, and it shouldn't work that way."
Some lawyers aren't so sure about that.
"It all depends on who you ask," said Jeb Branham, who defended Lubi's on University Avenue against a Hoewischer lawsuit. "I think the business owners think it's a shakedown. I haven't met Hoewischer, but his attorney said he just wants to get the problems fixed."
William Henry Andrews, who represented the landlord in a Hoewischer lawsuit against Visionworks on Blanding Boulevard, said plaintiffs in cases like this often concentrate on one street, one neighborhood at a time. And, in fact, half of those sued Monday are on a short stretch of Cassat Avenue: Gorgi's, Award Shoppe, S&K Muffler, First Coast Auto Finance and JC's Fresh Seafood.
No warning
Gillrup and others said part of the problem is that there is no prior complaint about potential problems. The first word the business owner gets is a lawsuit.
"It seems to me that if their main interest was getting things fixed, they'd write a letter first and give the owner a chance to correct it," Andrews said. "I think most reasonable minds would think that."
The Times-Union did reach Hoewischer, who lives off Crystal Springs Road. But he would not discuss the lawsuits and instead referred all questions to Todd W. Shulby, a Fort Lauderdale attorney who has represented Hoewischer on dozens of suits.
Shulby, who has filed hundreds of ADA lawsuits for other plaintiffs as well, did not return several Times-Union phone calls over several days.
But Thomas Bacon, an attorney from Cooper City, defended the lawsuits.
"People have written letters until they're blue in the face, and the reality is that it never works," said Bacon, who represented Hoewischer in several cases, including those against Woody's Bar-B-Q on Powers Avenue and Popeye's Chicken and Biscuits on San Jose Boulevard.
"The only recourse these people have is the lawsuits," Bacon said. "And, frankly, I don't know if defense lawyers and defendants really believe that they would have brought themselves into compliance. I think it's disingenuous."
VIOLATIONS
Most of Hoewischer's lawsuits, no matter which attorney filed them for him, have page after page that are identical. They give the background of the law, say that he tried to visit the facility but was unable to have full access, etc.
But each also includes a list of alleged violations. Bacon said that with his cases, he doesn't take the plaintiff's word for it, but also sends out an investigator who takes photos of issues in question.
The suit against Hardee's on Blanding Boulevard, which was among the dozen Shulby filed Monday, lists 18, some as specific as "the toilet paper dispenser is too high and obstructs the side grab bar."
Fowler only has a dozen listed in the suit against Westside Automotive, the repair shop his grandfather opened 42 years ago. He looked over the list and acknowledged that he didn't have a blue parking curb out front, a wheelchair could not fit under the restroom sinks and there was no grab bar next to the toilet.
But the lawsuit also claimed the restrooms were inaccessible when the surface is flat and unobstructed all the way to the 36-inch-wide doors.
"I'm the last guy in the world who should be sued," he said. "I can give you the names of half a dozen handicapped customers who have been coming here for 20 years."
He also checked his files and said that Hoewischer had never been a customer there.
Businesses that are sued under the ADA usually hire their own consultants like Gillrup to see what needs to be done.
"Some of the allegations in the complaints are totally bogus," Gillrup said. "We went to one place last week where they'd alleged that there needed to be a counter 36 inches so that someone in a wheelchair could make change. They were right about some things, but the counter was right there. They couldn't have missed it if they were there."
THE COST
Bacon said that at least 90 percent of his cases are settled in the plaintiff's favor. The defendants agree to fix some, but often not all, of the issues raised in the suit.
"In most of these cases, there is virtually no litigation. But there are some things to fix, especially in these older facilities," said Guy Farmer, a Jacksonville attorney who represented the landlord in a Hoewischer suit against Pier One on Blanding Boulevard. "They don't have to fix everything, the law is more reasonable than that."
The work, he said, can cost anywhere from $500 to $500,000. But it usually includes the plaintiff's legal fees, which prompted U.S. District Judge Gregory Presnell of Orlando to once write in a ruling: "The current ADA lawsuit binge is, therefore, essentially driven by economics - that is the economics of attorney's fees."
And Farmer agreed.
"I do believe that it has become a bit of an industry for some attorneys," he said.
Bacon disagreed, noting that when Congress passed the law it didn't award any damages to the plaintiff or mandate that local code enforce it.
"So who's going to enforce it? Maybe these defense attorneys who complain about it could take these cases pro bono so they can sleep better at night," he said.
"We try to make these a no-hard-feelings case," Bacon said. "We're not accusing the defendants of wrongdoing or malice or prejudice. But it's simply that nobody enforces these laws except people like Mr. Hoewischer."
Roger Bull: (904) 359-4296
Read more at Jacksonville.com: http://jacksonville.com/business/2011-05-22/story/lawsuits-over-ada-compliance-valiant-campaign-or-small-business-harassment#ixzz1N5UATK4e
