Faces Familiar in Disabilities Act Suits

January 11, 2016

 

The Americans with Disabilities Act, a law now more than a quarter of a century old, has generated a lot of lawsuits aimed at ensuring compliance with its provisions, and federal courts in Arkansas have not been immune.

 

But periodic flurries of filings by the same plaintiffs and lawyers, in Arkansas and beyond, have led to some concerns about the motives behind the barrage of litigation.

 

Those filing the lawsuits say they aim to improve accessibility for the disabled, while some others fear that the law is being used inappropriately to line someone's pockets at the expense of businesses and municipalities that might not know they're out of compliance or can't afford the required fixes.

 

For attorney Ed Zwilling of Birmingham, Ala., who since September has filed five lawsuits in the Eastern District of Arkansas on behalf of one person, Chris Jensen of Gravel Ridge, it reflects a sad reality that "there are no ADA police" and as a result, "For most localities, the ADA is not on their radar at all."

 

Zwilling said Jensen and other plaintiffs for whom he has filed more than 500 lawsuits across the country -- with fewer than 100 currently pending -- are usually "just entitled to equitable relief," not money, depending on the section of the Americans with Disabilities Act the violation falls under. He said most of his cases are filed pursuant to Title III, which pertains to stores, restaurants and hotels, and doesn't offer monetary judgments to plaintiffs.

 

Zwilling said Jensen's motivation is simply to stop discrimination against people with disabilities who have trouble navigating areas such as parking lots, entrances and restrooms, and to ensure that businesses and cities are complying with the law.

A lawsuit that Jensen filed Sept. 15 against the city of Sherwood alleges violations of the act at the city's animal shelter, three parks, recreational center, tennis center and hot-checks department. Jensen has a spinal-cord injury that requires him to use a wheelchair, the suit says. His lawsuit says he has been "denied full, safe and equal access" to all those locations because of a lack of compliance with Title II of the Americans with Disabilities Act, which applies to public entities.

 

A case like Jensen's is generally resolved with a confidential settlement that requires the defendant to make some improvements and, Zwilling said, requires the defendant to pay the filing attorneys' fees and costs at the standard "lodestar" rate for the area, which can be upward of $300 an hour.

 

Jensen, who didn't want to be interviewed, is also the plaintiff in 22 cases filed in the Eastern District in 2009 and 2010 by another attorney, Robert Mirel of Florida.

 

Mirel's last case filed in the Eastern District of Arkansas was settled confidentially on Nov. 15, 2010, after he tried unsuccessfully to prevent the court from admitting San Diego attorney David Warren Peters for the purpose of defending Hot Topic, a California-based company targeted in the suit.

 

Mirel, then based in New York and New Jersey, refused to discuss the series of lawsuits with a reporter at the time and couldn't be reached for comment this month.

 

But Peters has such strong feelings against the prolific Americans with Disabilities Act litigation that he has a website called lawyersagainstlawsuitabuse.com, which assists defendants in accessibility lawsuits, particularly in cases "where it appears that inappropriate use may be being made of important laws which are intended to protect people with disabilities," according to the site.

 

Mirel cited the website in 2010 as proof that Peters' "sole interest ... is to limit the rights of the citizens" to file lawsuits under the Americans with Disabilities Act.

 

Peters sees his purpose differently.

 

"I think that a system which relies primarily on private lawsuits (often by opportunists) as the sole means of enforcement is the costliest, least efficient means imaginable of achieving this very important societal goal," he said Dec. 21, in response to questions about the plethora of Americans with Disabilities Act lawsuits filed across the country by a small group of plaintiffs and attorneys.

 

Peters calls California "the ADA lawsuit capital of the world" because at least 40 percent of the nation's lawsuits related to the act are filed there.

 

In that state, "We have attorneys asserting claims of many thousands of dollars to fly from one end of this state to the other just to sue tiny, family-run businesses. One of my clients in Southern California was told they'd need to pay an extra $2,000 every time the Northern California attorney suing them had to get in his private plane to fly to Southern California to appear in court, even though there were many highly experienced attorneys who could have easily handled the matter near their business," he said.

 

Zwilling is familiar with the criticism against attorneys like himself, for whom filing Americans with Disabilities Act lawsuits is a major part of their business. But he says, "The problem, in my view, is there is nobody that really polices this. I hear from small businesses a lot that they got a certificate of occupancy so they thought they were OK."

 

He said compliance with the act isn't something many local code enforcement officers look at, so it's often up to disabled people in the community to notice deficiencies and take action to correct them.

 

"The only people that have legal standing to enforce the laws are people who are harmed" by the situation, he said. "One way is to file a lawsuit. Or you can file an administrative complaint with the Department of Justice, but that's one agency that oversees the entire country."

 

He said that while the department can "sometimes" provide relief, it's a long process, especially if dealing with a long list of potential violations of the act.

 

It's been 25 years.

 

Tom Masseau, director of Disability Rights Arkansas, a private, independent agency responsible for enforcing the rights of disabled people, supports the efforts of Zwilling, with whom he has given a joint presentation to disability advocates.

"Sometimes it does take a lawsuit" to get businesses to take action, he said, noting that in some critical areas of concern, such as parking and building access, "It is very hard to find a business in complete compliance. ... While I do think it gives the disability community a bad name, because of having to file all these lawsuits, the other side is, it's been 25 years. Why haven't you done something?"

 

Zwilling said much the same thing. Noting that while there are varying degrees of exemptions for compliance with the law for some religious or private organizations or historical sites, he said, "The law is over 25 years old now. You'd think by now people would have gotten the message" about the need to comply.

 

Facilities that existed before the law was passed in 1990, or before various phases of the law took effect, are required to make only enough repairs or revisions "to do what is readily achievable," he said.

 

Zwilling said that while he and his clients, including Jensen, work with the defendants in their lawsuits on the amount of remedial work that will suffice without putting someone out of business, all business owners should be aware of their obligations. This is true even if the business just rents the space, he said, noting that the Department of Justice considers keeping up with the Americans with Disabilities Act "an ongoing obligation" of all businesses. And it's cheaper to fix the problems on the front end rather than after a lawsuit has been filed, he said.

 

"I try to be a collaborative fella," Zwilling said. "I just want to get it on their radar. There's always going to be a cost-benefit analysis that comes into play. Generally I stay away from mom-and-pop places."

 

One "mom-and-pop" place that was the target of a lawsuit Jensen filed in 2009 through Mirel was Hidden Treasures Antiques in Sherwood. Owner Lonnie Karasek said that because of a confidentiality agreement when the case was settled and dismissed on March 8, 2010, she couldn't discuss how much the lawsuit and accompanying fixes cost her and her husband -- who is disabled due to back and shoulder problems -- but, "it was substantial for us."

 

Karasek said that until Jensen's lawsuit was filed, she had "not ever" had a complaint about her business being inaccessible to the disabled, "and we've been doing this 22 years."

 

Her attorney, Charles "Skip" Davidson of Little Rock, said all he remembered about the case was "it was a heavy burden on a small business to deal with these claims."

 

Masseau noted that Congress has considered requiring potential plaintiffs to file a 90-day notification before a lawsuit can be filed, to give a business time to correct Americans with Disabilities Act deficiencies. But, he said, the way he sees it is, after 25 years, "what's 90 days going to do for you?"

 

When someone complains to Disability Rights Arkansas about a lack of access for disabled people, Masseau said, "We'll reach out to the business owner, have a conversation. Then we'll send a follow-up letter. But because there are so many, we can't file individual claims. We encourage people to file a complaint with the Department of Justice."

 

Masseau said that in fiscal 2014, which ended Sept 30, 2014, his office took 178 calls from across the state about accessibility problems experienced by the disabled. In fiscal 2015, he said, his office took 183 such calls.

 

He said he wants to get businesses and the disability community together to address accessibility issues without the need for lawsuits, but meanwhile, "It's always helpful to have somebody willing to stick their neck out" to file a lawsuit to ensure compliance with the law.

 

Zwilling, who is licensed to practice in Alabama, Arkansas, Texas, Mississippi, Kansas and Kentucky, said the reason many Americans with Disabilities Act lawsuits are filed by the same defendants, often using the same attorneys, is because most people who notice possible compliance deficiencies don't know where to turn to get them corrected, and there aren't many attorneys specializing in such cases.

 

"There aren't a lot of lawyers who do this type of work, so I do it all over the country," he said. He recalled one client telling him, after finally tracking him down through a newspaper article, that attorneys who specialize in Americans with Disabilities Act cases "are like a unicorn. You hear about them but you never see them."

Sara Teague, an attorney with the Arkansas Municipal League who is representing the city of Sherwood in Jensen's lawsuit, didn't return a call about the case.

 

But Don Zimmerman, executive director of the league, which provides legal assistance to 500 of Arkansas' 501 cities, the last being too new to be a member yet, said most cities have tried to get their facilities into compliance with the law.

But at the same time, "there are some attorneys who specialize in trying to find errors," he said.

 

Still, Zimmerman said, most of the cases the league has dealt with "have not been major. Sometimes they need curb cuts, or counters at the right heights, maybe a larger door width or ramps. ... They usually try to make these accommodations after someone has filed a complaint, but [before then], there may have not been an awareness. That, and a lot of times, the facilities were constructed before the regulations came about."

 

He said he couldn't recall any major judgments or settlements against any Arkansas cities regarding the Americans with Disabilities Act.

 

But Zimmerman remembered that when the law was first passed, "we had a lot of publications and training manuals, including a three-ring binder with a lot of diagrams, and we had quite a few training sessions" to help the cities comply.

Despite all the training and materials, however, Masseau says the need for accessibility remains a real issue -- not just for people in wheelchairs, but for an aging population that is increasingly reliant on canes and walkers.

"To hear the frustrations of these people in 2015," he said, "that's pretty sad."

 

Metro on 12/27/2015

 

 

 

 

 

 

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