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Oct 19 2012

Congress Must Stop the ADA Shakedown Racket – And Here’s How

Like many statutes that are passed to correct a societal wrong, creative members of the legal community find a way to monetize the situation. The American with Disabilities Act (ADA) was passed with the noblest of intentions -to make sure that places of public accommodation were accessible to the handicapped. Who could argue with that? Congress then thought it would be a good idea to let citizens act as “private attorneys general” authorizing handicapped folks to bring lawsuits when they were denied access to places of public accommodation due to their disabilities. The citizens would get no monetary award, but if they were successful, the place would have to change their physical layout to make it ADA compliant. And to make sure that the disabled could get legal help for these lawsuits brought on behalf of the public good, Congress added a clause that would allow for recovery of legal fees for successful lawsuits.

This section has created a cottage industry of litigation against restaurants, movie theaters and bars where a disabled plaintiff is literally driven around by the lawyer to numerous restaurants that don’t currently fully comply with the ADA. They allegedly can’t get in (or the sink is too high or whatever other feature is out of compliance is alleged) fie a lawsuit and collect $500 for the “victim” and around $3,000 in legal fees to the lawyer. Lawyers can find targets with ease, because the ADA is so hard to comply with. It lays out hundreds of requirements—everything from the permissible height of counter tops and mirrors in newer or renovated buildings to how heavy swinging entrance doors can be; to the exact location where grab bars must be located in toilets. A bathroom alone must meet 95 different standards, in one estimate I read recently.

Lawyers have their favorite litigants, filing hundreds and hundreds of cases using identical boilerplate language for every case. Some Federal Courts have caught on and issued orders disallowing future actions by the same plaintiff.See Rodriguez v. Investco, LLC, 305 F.Supp.2d 1278, 1278, 1285 (M.D.Fla.2004) (plaintiff involved in approximately 200 ADA cases prohibited from filing further without court approval); Molski v. Mandarin Touch Restaurant, 347 F.Supp.2d 860, 861 n. 2, 865 (C.D.Cal.2004) (plaintiff involved in more than 300 cases stopped from further filings). These plaintiffs have to swear that they wanted to go to the restaurant and will go once it is compliant. Problem is, when hearings are held on the case, the plaintiffs often can’t remember any details about the place or live geographically distant from the place so that is is unlikely that they ever would have gone to the location if the lawyer hadn’t driven them. They are “serial filers” just interested in getting their legal fees. In April of this year, the NY Times reported about one plaintiff and lawyer who filed nine lawsuits in one day and 143 overall. This guy loves to go out to eat I guess and can’t seem to find an ADA compliant restaurant in this little town.

Newly constructed restaurants have to make sure they hire experts in ADA compliance and older restaurants have to prove that retrofitting their space would be an economic hardship or would not be “readily achievable.” That is not easy to do. Having represented many restaurants and bars hit with this suits, I can tell you that some have been pushed to the brink of closure trying to comply with The ADA and many others who would have done so had they gotten notice of the problem prior to the filing of the suit.

So what’s the fix? Certainly, folks with handicaps should have all the access and accommodations that the law requires. Validly brought lawsuits that seek to enforce the ADA should not be unnecessarily curtailed. I propose adding a section to the law that requires a “safe harbor” for public places before they be required to pay legal fees. That is, if a disabled person finds ADA issues at a particular establishment, they should be required to first write the establishment with their complaint and then the restaurant would have a reasonable time to come into compliance. IF they fail to or refuse to, then let the lawsuit be brought. This “safe harbor” provision is already in place in other federal statutes like the Digital Millennium Copyright Act and Federal Civil Procedure Rule 11 regarding attorneys’ fees for frivolous actions.

While there would still be some litigation over what constitutes a reasonable time, that would be a small percentage compared to the current status of the law which amounts to shooting fish in a barrel. This amendment to the ADA would keep its express purpose in place and its remedies in place, but it would allow the targeted establishment a fair opportunity to correct the condition before having to pay its own and the litigant’s legal fees.

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