Drive-by Litigation?

Drive-by Litigation?

Small businesses battle what they call frivolous and expensive lawsuits by

disabled rights advocates.

By David R. Corder

Associate Editor

The legal strategy fascinates Todd S. Aidman. He unapologetically describes it as "locusts" that first infested the Miami-Fort Lauderdale area, spread to the Naples-Fort Myers region and now grips the Tampa Bay area. The Tampa Ford & Harrison labor law attorney is describing federal lawsuits that accuse mostly small-business owners and entrepreneurs of violating the Americans with Disabilities Act.

Within the first 15 days this month, Broward County lawyer Todd Shulby filed 25 ADA actions in U.S. District Court, Tampa. The plaintiff in each action is Clearwater disabled rights advocate Johnny Long, who is listed as a plaintiff in 121 ADA actions filed since March in the local federal court.

The recent lawsuit activity illustrates just how large a gap still exists between disabled advocates and the businesses governed by the civil rights law Congress enacted 14 years ago.

To the small-business owner, the issue is about undue regulatory burdens that fail to factor in economic realities. It appears that many of these lawsuits target small businesses that lack the wherewithal to quickly remedy deficiencies.

"The majority wants to go after the smaller guy, the entrepreneur who owns a single restaurant or a hotel." Aidman says. "There's a reason why they do that.

"The reason is, for a defendant to win one of these cases, it can be quite costly," he adds. "Rarely will it be cheaper for them to win than to just settle. You sue a Wal-Mart, and they have the financial backing if they choose to defend. But for a guy or gal who owns a restaurant, they don't have the $60,000 it would take to win a case. They're stuck between a rock and a hard place."

But the issue for disabled-rights advocates is about basic human rights and all of the conveniences non-disabled consumers take for granted everyday, they say.

"The fact that businesses are being sued over parking, bathrooms and service areas highlights just how poor ADA compliance is," says Tampa attorney Kip Roth, who has defended businesses against ADA claims and represented disabled rights plaintiffs over his 12-year legal career. "Those are the problems that should have been cured a decade ago."

Attorneys' fees

When it enacted the ADA, Congress authorized the federal courts to award attorneys' fees to the prevailing party in an ADA lawsuit. However, federal lawmakers prohibited monetary damages to plaintiffs. Even so, Aidman says, the law still favored the disabled rights plaintiff and put businesses at a disadvantage.

In the early part of this century, the lure of lucrative attorneys' fees spawned a cottage legal industry that defendants' lawyers sarcastically call drive-by litigation, Aidman says. Such growth was no more prominent than in South Florida.

Often without prior notice, a provision lawmakers omitted from the ADA legislation, business owners would receive a summons to answer allegations they violated the ADA, Aidman says. It soon becomes apparent to them it's less costly to settle with the plaintiff's lawyer than to challenge sometimes well-documented deficiencies at the business.

"I would say almost 100% settle," says Aidman, the 2000-02 chairman of the Hillsborough County Bar Association's labor and employment law section. "Some people do (litigate) but it's very few and far in between. Almost all of the times, the plaintiff is right: There is a technical violation of the ADA."

To defend against an ADA action, Aidman says it costs on average of $35,000 to $60,000 in legal fees.

"Here's where they get you," he adds. "Instead of paying your lawyer $35,000 to $60,000 and possibly lose, they'll ask for between $10,000 to $15,000 in attorneys' fees to go away. So settlements are typical. I know what these cases settle for because I've done so many of them."

If they don't settle, Aidman adds, the business owner risks a compounded loss.

"All (the plaintiff) can get is what is known as injunctive relief, meaning the facility has to come into compliance with the ADA," he says. "So why bring these suits? If the plaintiff's attorney prevails as the prevailing party he gets his attorney's fees paid. They're going to be $35,000 to $60,000 if you go to trial. Not only have you paid your attorney $35,000 to $60,000, you quite possibly are paying their attorney's fees as well."

Choosing defendants

Many of the lawsuits Shulby filed on Long's behalf earlier this month cited deficiencies at a string of unaffiliated businesses along a 21-block stretch of Main Street in the north Pinellas town of Dunedin. One complaint is against Spoto's Steak Joint II, a mom-and-pop restaurant Robert and Katheryn Spoto opened four years ago at 1280 Main St.

The summons to answer the lawsuit surprised the Spotos. Spoto says neither Long nor Shulby talked to them about their concerns prior to filing it.

Prior to opening the restaurant in 2000, Spoto says he adhered to Dunedin city code to ensure the business met all applicable laws. For instance, Spoto says, Long's lawsuit claims the business doesn't have panic bars in the toilet stalls.

"Everything's been fixed," Spoto says. "We've even got panic bars."

The thought of paying $10,000 to $15,000 to settle what he considers a frivolous lawsuit disturbs Spoto, who is partially disabled with knee and hip problems and who prides himself on the service he provides to numerous other disabled customers.

"I couldn't pay that type of money," he says.

Spoto retained St. Petersburg attorney Leonard Englander of Englander & Fischer PA. "We intend to vigorously defend Spoto," Englander says. "All of the allegations in the complaint about non-ADA compliance are inaccurate."

Englander, too, wonders how the plaintiff can justify a complaint considering how much work the Spotos put into the restaurant under the watchful eye of city code enforcement officials.

"Who can open a restaurant today without meeting ADA compliance?" Englander says.

While Shulby did not respond to a GCBR request for comment, Long says he doesn't target specific businesses for ADA violations. This disabled veteran of the Vietnam War says he just finds ADA deficiencies as he goes about his daily life. A drunk driver 11 years ago forced him into a wheelchair.

"I'm not used to being treated less than any other American," Long says about his motivation. "That's my whole reason.

"I've lived in the Tampa Bay area for 20 years; I've been in a wheelchair for 11," Long adds. "Where haven't I been? I've been everywhere."

Nor does Long consider his advocacy work a crusade.

"If you go out to dinner, would you call that a crusade?" he asks. "If you went out to any other event, would you call it a crusade? Nobody takes the ADA serious. Only people who are disabled take the ADA serious."

But the issue goes deeper, Long says. Some of these accessibility problems affect more than just the disabled person. He cites obstacles that hinder pregnant women, the elderly and the ill. He asks: What happens if someone has a heart attack at a restaurant or a hotel? Is the doorway ADA compliant enough that it allows emergency medical personnel access with a gurney?

"Businesses have a choice in doing whatever they think is appropriate," Long adds. "The problem is everyone leaves it up to the disabled (to ensure compliance)."

Perplexing dilemma

Up until the spring of 2000, Kip Roth occasionally represented ADA plaintiffs in federal court. It was around that time the news media first focused on the aggressive practices of a few lawyers in this legal cottage industry. News coverage paid critical attention to the practice of filing the ADA lawsuits without pre-suit notification.

The lack of notification always bothered Roth, even though he knew Congress omitted the notification mandates from the ADA. It bothered him so much he decided to forego ADA plaintiff's work and focus solely on his employment law and civil rights practice.

"It was not a volume business and was very client and problem specific," Roth says about his ADA plaintiff's work. "I only filed a lawsuit when a client had a specific problem and had addressed the problem with the business without success.

"Despite my practice of giving notice before filing, I found myself being accused of using the same tactics as the practitioners who don't give notice," he adds. "I always gave notice. I refused to file a case without giving notice. That's when I decided to focus my efforts on preserving the ADA."

Roth fears aggressive legal tactics could erode any gains the disabled population has gained through the ADA.

"If the real motivation is to solve the problem, then there is no excuse for not giving notice," he says. "At the same time, if Congress wants to require notice, I have proven there are very effective ways to do it that do not destroy the ADA.

"If (businesses) choose to comply with the law, then leave them alone," he adds. "But if they continue to ignore the law, they should face a penalty."

Such a philosophical mindset didn't sit well with some potential clients, Roth acknowledges. A few years ago, a particularly litigious South Florida client asked Roth to represent him. The client supposedly wanted to distance himself from a South Florida lawyer who had gotten negative publicity about his ADA filing practices.

"I told him, 'I won't file suit without giving notice and an opportunity to cure the alleged violations,' " he recalls. "I was thrilled. I had been lobbying for people to give notice for some time. I finally thought I was going to prevail on somebody who was filing a whole lot of lawsuits. But the person never contacted me again."

As for Johnny Long, Roth says, he's "one of the finest men I've ever met. You won't find a more effective advocate. I just wish the focus could be directed toward those in willful noncompliance as opposed those trying to remedy the problems."

Shock and outrage

The notification issue appears to be one of the biggest problems businesses have about ADA litigation, Aidman says.

"Most businesses are in shock and outraged," he says. "Somebody will show up and serve (the owner) with a lawsuit. They do not know who the guest was that filed the lawsuit. They just get sued."

But even Aidman is not so sure congressional enactment of a notification requirement is a good idea. Roth has no use for a bill proposed by U.S. Rep. Mark Foley, R-Palm Beach Gardens.

Foley proposes a 90-day waiting period after mandatory notification. However, the congressman twice has failed over the past four years with two similar bills.

Aidman says it's a good idea to give a defendant additional time to bring a facility into compliance with the law.

"But often a facility that might need some real renovations couldn't be brought into compliance within 90 days," he says. "You might have to go to the city council to get a variance. You can't get a variance and do the renovations within 90 days. That's not technically possible."

In Roth's opinion, the Foley bill - House Resolution No. 728 - fails as a compromise.

"No! It destroys the ADA," Roth says. "It permits businesses a free pass to ignore the ADA unless and until they receive written notification specifically notifying them of the problem, and only then do they have to fix the problem identified. Whereas the law says, as of 1992, businesses were ordered by Congress to immediately perform all readily achievable barrier removal.

"In other words, Foley's bill victimizes 56 million disabled Americans by allowing businesses to leave the access barriers in place that Congress promised would be removed a decade ago," he says. "People have seen through it. It's so obvious. It's grossly unfair."

Defending against ADA complaints

By David R. Corder

Associate Editor

Not many options exist for businesses sued in federal court under the Americans with Disabilities Act, says Tampa attorney Todd Aidman.

"The only defense to a case where the facility is not in compliance with the ADA is to bring the facility into compliance with the ADA prior to the case being judged on its merits and claiming the lawsuit is moot and therefore prevent the plaintiff's attorney from becoming the prevailing party and getting their attorneys' fees," says the Ford & Harrison labor law attorney.

There are exceptions, however.

Republic Bank successfully defended an ADA action that Access for the Disabled Inc., a Coral Springs-based nonprofit advocacy group, and Clearwater disabled rights activist Johnny Long filed in September last year in U.S. District Court, Tampa.

GrayRobinson attorney David S. Hendrix, who represented the bank, vigorously challenged the numerous complaints the plaintiffs cited over access to parking, restrooms and services at a bank branch at 3024 Enterprise Road E., Clearwater.

In an answer to the complaint, Hendrix and the bank denied each allegation and asserted 14 affirmative defenses. Hendrix argued that alterations and modifications could not be readily achieved, the alterations would require disproportionate costs and the alterations would cause undue burden on the business.

Earlier this year, U.S. District Judge Susan C. Bucklew dismissed the lawsuit. In an order issued Jan. 6, Bucklew gave the plaintiffs 10 days to respond why they had not filed a timely case-management report. They didn't respond.

Such challenges are generally the exception, Aidman says. Most ADA lawsuits settle quietly and quickly.

"It's rare a facility that is in compliance with the ADA, particularly buildings built prior to the implementation of the ADA," Aidman says. Older buildings, constructed prior to 1990, are not exempt from the law.

There are inherent risks in defending against an ADA lawsuit, Aidman adds. In response to a lawsuit, for instance, a business may hire a consultant to address any deficiencies. Even then, he says, there are no guarantees.

"Your expert might not catch all of the issues," he says. "And technically speaking, if the plaintiff's attorney prevails on an issue, even if it's a minor issue, they technically could be the prevailing party and get full attorney fees."

Then the plaintiff may retain an expert to check for other ADA deficiencies not originally cited in the federal complaint.

"They'll also throw in a catch section in the lawsuit, which says, 'We won't know the true extent of what's wrong with this facility without an inspection,' " Aidman adds. "Then they'll bring in an expert to come up with a litany of other things that aren't in compliance with the ADA."

Most business owners are surprised at the depth of the ADA requirements, Aidman says. The depth is expressed in the Accessibility Guidelines for Buildings and Facilities (ADAAG) by the Access Board, a federal agency, on its Web site (www.access-board.gov).

"If you're open to the public you must be in compliance," he says. "You have to comply with the ADDAGs, which are pretty darn thick. The first thing people think of when it comes to the ADA is ramps. But it is far more descriptive than that. It says the toilet paper holder has to be a certain height; the lavatory mirror has to be a certain height. It governs the type of (public) telephones."

As for advice, Aidman says the best defense against ADA litigation is to become proactive.

"If a company wanted to be truly proactive, they may want to consider having an ADA expert with an architectural background come in and do an audit," he says. "If they own a facility constructed prior to the ADA, and they're going to renovate, that triggers a new standard.

"Therefore, they're going to want to make sure the architect and the construction company makes sure the facility is not only in compliance with (local) codes but the also the ADA itself," he adds. "It can be a race to the finish line. If (the business) decided to go the route of becoming in full compliance, often times they won't have as high attorneys' fees."