How Congress helped created a frivolous lawsuit racket.
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 city, filed 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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