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Cashing In ... or Catching Up

Do some ADA lawsuits potentially pit disability activists against businesses?

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The name sounds like a group of highly decorated veterans: Disabled Patriots of America. And in a way, they are. But instead of fighting on foreign soil, they've fought a string of battles in courtrooms across the country.

They fight for the 18-year-old Americans with Disabilities Act. Their latest target: hotels and shopping centers in Southwest Pennsylvania.

The group has filed six lawsuits in federal court on behalf of itself and two named plaintiffs from outside the area, including Bonnie Kramer, of Cleveland. It alleges that a number of area shopping centers and hotels have violated the act, including The Mall at Robinson and Robinson Town Centre, in Robinson Township; Ross Towne Centre and the Shoppes at Northway, near the Ross Park Mall; a Microtel Suites, in Robinson Township; and a Day's Inn, in Clearfield. Some officials at these companies could not be reached for comment.

But Jeff Linton, vice president of corporate communications for Forest City Enterprises, the owner of The Mall at Robinson, said the company takes "compliance with ADA very seriously. Just about anybody would agree that the ADA is a complex law subject to different interpretations." He said the company will take a "close look" at the items singled out in the lawsuit.

The ADA requires that all businesses and public entities like courthouses, swimming pools, parks, etc., be accessible and be open to utilization and enjoyment by people living with disabilities. Regardless of when the structure was built -- either before or after the ADA's enactment -- it must be accessible. There is no grandfather clause.

Each of these locations, the seven suits contend -- in identical language -- "have discriminated against the individual Plaintiff and members of the ... plaintiff organization by denying them access to, and full and equal enjoyment of the goods, services, facilities, privileges, advantages and/or accommodations of the buildings."

That may sound like a lot of places for Bonnie Kramer, of Cleveland, to visit, but the Disabled Patriots get around: The group has filed 191 lawsuits since 2004, and Kramer has been a named plaintiff in 54 of them. Lawsuits by this group alone have been filed in Ohio, New Jersey, Georgia, Pennsylvania, Michigan, Florida, Tennessee and Illinois. The suits describe Kramer, who was recently the plaintiff in dozens of lawsuits in the Cleveland area, as a person with multiple sclerosis and as "an advocate for similarly situated disabled persons." Kramer, the suit says, "plans to return to the property to avail herself of the goods and services offered" -- and also to make sure the alleged violations are addressed.

But lawsuits like these -- filed by plaintiffs in multiple locales -- have sometimes been derided as "drive-by lawsuits," intended not to improve access for the disabled but to make money for attorneys.

"All we do is defend these types of lawsuits," says David Warren Peters, CEO of the California-based Lawyers Against Lawsuit Abuse. "Here in California, we are tracking 7,000 of these lawsuits and we have uncovered a tremendous amount of evidence that the laws are being exploited with meritless cases."

However, some observers, such as Joan Stein, president of Accessibility Development Associates Inc., a national ADA consulting firm located in Pittsburgh, say: Don't be too quick to judge. This is the way the law's enforcement was designed.

"It's been 16 years and there are still a large number of entities that are not accessible," The ADA, she notes, is "a civil-rights law, it's not a building code." Disabled citizens or their advocates "are entitled to file a complaint either in federal court or with the Department of Justice," she says -- "[a]nd that's what these groups are doing."

She adds: "Sixteen years is a long time to cross the street."

The Disabled Patriots allege a range of problems with area shopping centers and hotels including, an "insufficient number of [parking] spaces designated for disabled use"; "signage at some of the designated accessible parking spaces are not mounted at sufficient heights"; "no accessible routes from the street, sidewalk and parking areas"; "ramps do not provide edge protection"; "grab-bars in the toilet-room stalls do not comply with the requirements"'; "vending machines for public use at the facility without the required disabled use elements"; and "counters throughout the facility in excess of 36 [inches]."

But the suit also acknowledges that the owners of the properties were not notified of the alleged violations, nor given a chance to fix them.

Forest City's Linton says the mall's management conducts an internal investigation every time an accessibility complaint is made. If the complaints listed in the lawsuit would have been made to the company, he says, they would have been investigated even without a lawsuit. "We don't ignore complaints about accessibility," Linton adds.

"I see this kind of thing a lot," says Peters. "Some lawyers are afraid if they contact the business, they'll make the changes and then they won't be able to collect attorney fees.

"If the goal was to make sure that a socially beneficial change is made, then why not give prior notice?" he asks.

Calls to Disabled Patriots attorney Thomas Bacon, in Florida, were not returned. Neither were e-mails sent to an address furnished on the Disabled Patriots Web site (www.disabledpatriots.com). But the organization's articles of incorporation show that the paperwork was filed by Florida attorney Todd Shulby, the same attorney who filed many of the organization's Cleveland lawsuits. He has also filed more than 800 ADA lawsuits in Florida alone, according to the St. Petersburg Times.

Elizabeth Milito, senior counsel for the National Federation of Independent Businesses, says the lawsuits can be "frustrating" for businesses -- especially because they can be extremely expensive to litigate. Often, she says, businesses opt to settle even dubious claims because it's cheaper than going to trial.

When cases have reached the courtroom, judges haven't always been kind to the plaintiffs. One California judge, according to Crain's Cleveland Business journal, said that a litigious plaintiff was involved in "a well-established pattern of abusive litigation" and granted summary judgment in favor of the defendant, a restaurant.

Another Florida judge said that ADA lawsuits had become a "cottage industry." Judge Gregory Presnell noted that the plaintiff filed his lawsuit less than a week after his attorney verified ADA deficiencies at Sandy Lake Towers Hotel, in Orlando -- without notifying the hotel of the problems beforehand. "Wouldn't conciliation and voluntary compliance be a more rational solution?" wrote Judge Pressnell in a ruling. "Of course it would, but pre-suit settlements do not vest plaintiff's counsel with an entitlement to attorney's fees."

Even some disabled-advocacy groups have spoken out against such lawsuits. Andrew Imparato, president of the American Association of People with Disabilities -- which has more than 100,000 members -- was quoted in Cleveland Business as saying:

"There are these individuals and boutique firms that make a business out of filing 75 claims at a time. It leads to a strong backlash against the ADA, and it can do harm to the cause of increasing access for those with disabilities. The point of this law is not to shake-down businesses. The point is to improve accessibility."

Still, Stein and others contacted for this story cautioned against referring to the local suits as frivolous.

David Strassburger, an attorney with the Downtown law firm of Strassburger, McKenna, Gutnick and Potter, recently won an accessibility lawsuit for his client Mark Christman, of the South Hills. Christman sued a local ice arena where his son plays ice hockey. Strassburger says he complained for some time about the poor accessibility issues, and, finally, after trying to "reason" with the venue, sued under the ADA.

"This was a place he visited several times a week, and he complained in person, in writing, and he got nowhere," Strassburger explains. "It was his last option and we won."

But Strassburger refrains from criticizing those for whom filing suit seems to be the first option. What matters, he says, is getting better access for disabled people.

"If I'm a disabled person, I should have [legal] standing to file a lawsuit anywhere in the country where there isn't legal access," Strassburger says. "If I go to a T.G.I. Friday's in Kenosha, Wisconsin, and I can't get in the front door because I'm in a wheelchair, then that's a problem no matter where I'm from.

"I really don't have much of a problem with what they are doing."

Neither does Joan Stein, whose consulting firm has been involved in many issues of accessibility locally and across the country. (Her group did the ADA consulting on PNC Park.) Proper and complete access shouldn't be seen by businesses as a hindrance, she says, but as a way to increase their business. Adults with disabilities have around $15 billion in discretionary income every year, she asserts: "Why would you want to lock those customers out?

"Look, Bonnie Kramer is not getting rich out of this, and yes, some lawsuits just exist to get legal fees," Stein says. "But this is the system that we were given to ensure accessibility. It was written to empower individuals to fight for their civil rights.

"If you look at most of these lawsuits, there are usually real accessibility issues in there that must be dealt with, and businesses have had 16 years to comply on their own. ... [R]egardless of what the perception is, a lot of times the end result [of the lawsuit] is that barrier getting removed. And removing barriers is the whole point of the ADA."

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