Exploiting the Americans with Disabilities Act

Under the heading of unintended consequences, few things can match the spate of frivolous lawsuits engendered by the Americans With Disabilities Act (ADA). Two of the latest abuses have been chronicled on both coasts. In Rye, NY, a single wheelchair-using resident, Luigi Girotto, has filed at least 12 separate lawsuits against local merchants for ADA violations. Yet in Yuba City, CA, such abuse has reached an unprecedented level: officials there have agreed to pay serial litigant George Louie $15,000 to stop filing any more ADA-inspired lawsuits within the city limits.

The ADA, enacted in 1990, combined a civil rights initiative with a determination to give Americans who are permanently disabled as much access to mainstream activities as possible. As a result of the civl rights part of the equation, employers could no longer discriminate against hiring someone because of a disability. The second aspect of the law required businesses to make reasonable accommodations that would provide disabled people with “access” to their establishments.

It is the latter aspect of the law that has led to an array of abuses. Former Manhattan Institute scholar Walter Olson, in an article released in 2004, explains why. “Lawyers can find targets with ease, because Title III of the 1990 Americans with Disabilities Act, covering public accommodations such as stores and theaters, is so hard to comply with. It lays out hundreds of requirements–everything from the permissible height of countertops 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, and on and on,” Olson reveals.

Olson then cuts to the heart of the matter. “Even a firm that thinks that it’s complying with the law because, say, its architect worked with an ADA consultant, can be in for a rude surprise when a different official swings by looking for violations. ‘I have not found anything that’s 100 percent compliant with the ADA,’ Mariana Nork, senior vice president of the American Association of People with Disabilities, recently observed.” And then there’s this. “ADA demands clash with the aims of the historic preservation movement, since all historic building styles incorporate features now forbidden or discouraged.”

That last bit is key, as the New York Times revealed as recently as last April. “A small cadre of lawyers, some from out of state, are using New York City’s age and architectural quirkiness as the foundation for a flood of lawsuits citing violations of the Americans With Disabilities Act,” the Times reports. The paper notes that these attorneys “are generally not acting on existing complaints from people with disabilities. Instead, they identify local businesses, like bagel shops and delis, that are not in compliance with the law, and then aggressively recruit plaintiffs from advocacy groups for people with disabilities.”

The egregiousness of the scam is underscored by the reality that each plaintiff, who typically collects $500 for each suit filed, “can be used several times over. The lawyers, meanwhile, make several thousands of dollars, because the civil rights law entitles them to legal fees from the noncompliant businesses.” That’s because when the law was written, Congress refused to allow disabled plaintiffs to sue for damages, only for court-ordered remedies to the problems that were raised in lawsuits. Yet in a compromise, Congress allowed for fees to be awarded to attorneys that bring their discrimination cases.

In Rye, the Aventura, Florida-based Weitz Law firm that has filed scores of ADA-inspired suits in the Northeast, has teamed up with Luigi Girotto, and targeted such mom-and-pop businesses as Bubble and Tweet, Rye Eye Care, Rye Bagel Shop, Yogo Joy, a yogurt boutique, Arcade Books, Central Barber Shop, and R&M Woodrow Jewelers. One of the most damnable common denominators here is the fact that, according to a number of these merchants, Mr. Girotto has never patronized their establishments. Despite this reality, most of the merchants are settling their cases due to the reality that tens of thousands of dollars in legal fees and settlement costs associated with fighting such abuse could literally be the difference between staying in business or shutting one’s doors.

Case in point: in 1998 restaurant River City Brewing Co. in Sacramento, whose owners spent $1.5 million on architect plans approved by the cityfiled for bankruptcy after a two-year legal fight with a wheelchair-bound woman who did not have access to the restaurant’s mezzanine, where less than a third of the restaurant’s total seating was located. A court ordered the owners to pay $145,000 — to compensate the plaintiff’s lawyers.

In similar fashion, the business owners in Rye note it is the Weitz law firm, not plaintiff Girotto, who will end up with most of the money. “It’s a terrific business model if you can live with yourself,” said David Lacher, a lawyer who is defending two businesses, Sotheby’s International Realty, Inc. and the Central Barber Shop. “The judges hate these cases because they know exactly what’s going on.” Lacher further noted that since the ADA is so heavily skewed towards the plaintiffs, most of them settle for sums that generally reach the “low five figures.” “If they just find a step, that’s all they need,” he said. “At the end of the day, everybody settles.”

In Yuba City, CA, the entire municipality has settled with serial litigant George Louie, despite a ruling by a Contra Costa County Superior Court judge that placed him on a state list of “vexatious litigants” in 2011, which barred him from filing lawsuits in California courts. Louie can still file suits in federal court, and he has apparently made the most of that opportunity. He filed a large lawsuit against Yuba City for disability access at several of its intersections, costing them tens of thousands of dollars. Hence, the settlement. “He’s agreed not to file ADA lawsuits in our city, period,” said Darin Gale, Yuba City’s economic development manager. “There’s no timetable. It’s forever.”

That’s forever, as far as Louie — and only Louie — is concerned. Yet city officials naively believe that such a ground-breaking settlement, unanimously approved in a closed-door meeting by the Yuba City Council on October 2nd, is a one-of-a-kind arrangement. “We are definitely not here to be a bank for some of these advocates to continue to sue the city or local businesses,” said Gale. “But in this case, we went through the process and it’s in the best financial interest of the city, and we don’t plan on doing it again.”

Such a plan is at odds with reality. America is rife with attorneys and litigants in search of an easy payday, especially one that can be couched in noble terms of helping the disabled, in order to obscure the true intent. Thus, it is no surprise that mass filings have been occurring for years in states such as California, Florida, Hawaii, Pennsylvania, North Carolina, Tennessee, and Oregon.

Former Representative Mark Foley (R-FL) regularly introduced legislation to amend the ADA to require that business owners receive 90 days notice before being sued, which would allow those owners time to put their establishments in compliance with the law. That alone would prevent most of the frivolous litigation currently occurring. Unfortunately, that legislation was regularly tabled. Similar reform is currently pending. Yet one has to wonder about its odds for success in the 112th Congress, where 148 attorneys inhabit the House — and a majority of 52 lawyers inhabit the Senate. Furthermore, it is not likely those totals will be radically altered by the election. Thus, it is likely that such abuse of the ADA will continue.

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  • Chezwick

    Everyone is rightly focused on tax and regulatory reform, but let's not overlook the necessity of tort reform. Litigation and the fear of litigation is a major driver in the cost of doing business, is responsible for the rigid, common-senseLESS application of laws and regulations by states and localities (such as demanding a business license from a 9-year old with a lemonade stand) , and is psychologically debilitating to our overall society.

    Which political party is the main impediment to tort reform? Let's put it this way, the 'Trial Lawyers of America' is – election after election – one of the largest donors to the Democratic Party.

  • a.men

    Romney/Ryan 2012.

  • Schlomotion

    If only everybody who broke the law got a 90 day grace period to keep doing it and stop on midnight of the 89th day!

    • http://www.facebook.com/ltcjenscott Jennifer Scott

      Great idea! But there is a huge difference between those who are breaking the law intentionally, and those who may be clueless that are in violation of some obscure regulation or building code. Historic buildings, and really any building that was built before the ADA, are often impossible to bring into compliance without spending enormous sums of money. There you get into having to interpret what is a 'reasonable' accommodation. When it's not your money that's being spent, any and all violations are unreasonable, and need to be corrected at any cost.

    • Western Canadian

      This bozo, Shmuckmotion, has on several occasions claimed to be a lawyer. Since intelligence and integrity are NOT prerequisites for becoming such, it is very likely he is indeed a lawyer, of the most shameful variety. This last post would confirm both suggestions.

  • UCSPanther

    What I think should be done to combat frivolous lawsuits: ID current frivolous litigants and slap them with the "Vexatious Litigant" injunction (Which effectively disallows them from filing any more lawsuits), make it clear that any other others who try the same stunts will suffer the same legal block, and then make it much, much more difficult to file lawsuits to begin with.

    When fringe radicals (Mainly the Sovereign citizen movement) were abusing the lien system, mainly to harass and extort government officials and perceived enemies back in the period between the 1970s-1990s, many states tightened the laws and procedure on applying for liens and were effectively able to make it more resistant to abuse. That caused a major drop in the number of frivolous lien cases.

  • Ozzy

    No wonder you moron Republiplaints can never win an election until after 8 years of the Dumbocrats. Criminey.

  • guest

    As someone that was forced into a medical retirement against my will in the early 1990's the truly sad aspect of the ADA law is how little it benefits those who are handicapped and should be helped. Leave it up to leftwing Democrats and their biggest friends the trial attorneys to abuse this and every law to their own bank accounts. God save us from their help before they help us into our graves.

  • http://www.islamiruyayorumlari.net/ruya-tabirleri rüya tabirleri

    Great spot Arnold

  • Tweed Dee

    Unfortunately, I worked with one of these attorneys who filed many, many case. I went to work for him thinking, “Wow, he’s standing up for folks who need someone to help them.” Little did I realize that the attorney recruited certain handicapped individuals whom he educated so they could visit shops and stores that he/she would most likely never really want to go to that specific business, so they could then send an emàil to the attorney to let them know where they had visited and gave them a short list to begin targeting that business. I feel bad for those recruited plaintiffs as they probably are on a very limited income because of their disability and an extra $500 per month per settled suit would give them quite an increase in monthly income.

    The main attorney, was one of the most difficult and obnoxious attorneys I have ever worked with. Needless to say, I no longer could stomach working for this person. It was highly unfortunate, but the other attorney was one of the nicest people I have ever known.

    The attorney lives extremely nicely and travels extensively but he’s not a very nice person at all. One of the ones that casts a shadow on other great attorneys. Having worked in this profession for many years, I know many attorneys with hearts of gold.

    I feel bad for those who are disabled but this isn’t a very good way to have to survive and are taken advantage of by predatory lawyers. Enough said.