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People's Law Guide

 

Businesses Hit With Dubious "Handicapped Access" Lawsuits

02/04/12

Just because a lawsuit filed against your business seems ridiculous, doesn't mean it won't be costly to defend against. Then again, utilizing the right legal defense strategy can greatly minimize what could otherwise lead to very high legal expenses.

Hundreds of businesses across South Florida have been hit with Americans with Disabilities Act ("ADA premises") lawsuits alleging businesses in violation of ADA laws, blocked handicapped persons from having access to stores, shopping centers or malls, restaurants, office buildings, offices of physicians, attorneys, accountants and other professionals, motels and hotels and other facilities. Some of the lawsuits complain of curbs which block wheelchair access or lots lacking parking for handicapped patrons. Other claims allege restrooms lack heat shielding insulation on drain pipes below sinks expose wheelchair users to leg burns or that toilets need to be re-set by as little as half an inch or that mirrors were placed on walls at wrong heights.

Once served with a lawsuit complaining about bathroom signs not containing braille, doors having knobs instead of easier to use leaver handles, or tables at restaurants not marked with signs stating handicapped persons have priority rights to use them, business owners and the landlords they rent premises from find themselves pursued in what many call "shakedown schemes." The Title III public access section of the Americans with Disabilities Act has been "hijacked," according to many business owners and commercial landlords.

Enacted in 1990, ADA prohibits individuals from being "discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation." Of course, nobody wants blind persons or people relying on use of wheelchairs, canes or walkers from being unable to shop, dine, watch a movie in a theater or be excluded from parks or museums. But when a liquor store is sued by a handicapped young child who claims its aisles were too narrow to accommodate her wheelchair, as occurred here in South Florida, business owners have cried foul. Florida is among the four "hot bed" states for filing of these cases, along with California, Oregon and Hawaii who escalated the volume of their voices when crying "foul." What they find most upsetting is the high legal fees demanded to settle the lawsuits. Attorneys representing the handicapped persons bringing these claims demand payments of thousands of dollars to "settle," even though necessary property renovations often cost well below the legal fees sought. The purchase of ADA compliant adhesive bathroom signs can cost under ten dollars and lessening the angle of slope on a steep sidewalk ramp can cost under $1,500.00; while the attorney who filed the lawsuit demands $3,000.00 to $10,000.00 or even more to drop the case. Though the law forbids the handicapped person who filed the suit to receive anything beyond the satisfaction of knowing that another commercial property has complied with ADA accessibility requirements, there's much speculation that money sometimes changes hands between some attorneys filing these cases and the disabled persons they represent.

Almost 200 lawsuits naming Carlisle Wilson as a plaintiff have targeted commercial establishments in Dade and Broward Counties. All the lawsuits were filed by attorneys William Tucker or Lawrence McGuiness. Peter Kourkoumeils, owner of the Peter Pan Diner in the Oakland Park suburb of Fort Lauderdale told Sun Sentinel newspaper reporter Shannon O'Boye, he spent $500 to move a toilet half an inch and to purchase two signs denoting handicap accessibility, and another $3,500 to Wilson's lawyers. Ironically, Tucker's law firm is inside a building lacking disabled parking and has an entrance which can be opened only by a doorknob, though ADA requires handles replace knobs, the Sun Sentinel wrote. Entry to McGuiness' law firm would require a disabled individual to set up a curb, since no ramp exists, the same August 26, 2001 article reported.

An organization calling itself Citizens Concerned About Disability Access filed thirty five lawsuits in a single month, the Sun Sentinel reported in 1999. A 12 year old Pompano Beach girl, named as the plaintiff allegedly restricted to a wheelchair, claimed in separate cases she was deprived access to a liquor store and a pawnshop.

ADA cases first became a local phenomenon in the late 1990's and continued to be filed in large numbers through the early part of this decade, during the time-period when the National economy was quite weak. With what appears to be a recent resurgence in the number of ADA lawsuits being filed locally, there's much speculation that those law firms filing the cases are unable to attract enough clients with quality cases in recessionary times and are looking for easy ways to generate legal fees. There are some local attorneys and law firms having filed hundreds of these cases apiece.

While diligent work by an attorney can uncover strong legal defenses, it is usually more economical for an entity being sued to attempt to negotiate as small a payment as possible to the attorney who filed the suit and to quickly make renovations bringing one's property into ADA compliance. Attorneys experienced in defending these types of cases often utilize a "stay" or temporary halt in the lawsuit process so that an architect or contractor can evaluate the merits of the claims raised. If actual ADA violations exist, business owners and landlords can promise renovations will be made promptly. If the opposing attorney refuses to temporarily cease lawsuit activity or if she or he demands what seems to be an excessively high legal fee, legal counsel for business owners and landlords can request that judges presiding over these cases schedule "fee hearings" to assess the reasonableness of the amounts of money opposing lawyer demand to dismiss these case. Few attorneys filing these cases want to attempt to justify their legal fees during a hearing presided over by Federal Court judges.

Sometimes businesses would rather "fight back on principle," though doing so requires paying their legal counsel to engage in an on-going litigation battle. Landlords and business owners should be aware that existing structures are often not required to undertake major access-related renovations until other significant modifications are made. Until major modifications occur, ADA permits low cost, simple alterations which are "readily achievable." Also, the ADA's "elevator exemption," for example, permits structures up to three stories tall to have only stairs, so long as no floor exceeds 3,000 square feet and the building is something other than a shopping center or mall, professional office of a health care provider or a transportation facility.

To avoid legal fees paid to the attorney representing businesses and the lawyers who filed ADA suits, landlords and business owners would be wise to retain the services of architects, engineers or contractors familiar with ADA to determine if their properties comply with handicap accessibility requirements. The costs of renovations made prior to being hit with a lawsuit pale in comparison to the combined expenses of legal fees paid to a defense attorney and the opposing attorney, as well as the later cost of making renovations to the property on a rush-basis.

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