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| Frank Melvin, owner of Casey’s Restaurant & Saloon in Drexel Hill, in one of two handicapped-accessible bathrooms. Melvin said he was stunned to find out a suit was filed over accessibility at the restaurant. | |
Posted on 08/31/2003 4:06:51 AM PDT by calvin sun
Business owners call flood of disability suits an ambush
Inquirer Staff Writer
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Warren Lloyd claims he suffered "severe emotional distress" at Casey's Restaurant & Saloon in Drexel Hill because he didn't find the restroom fully accessible to people in wheelchairs and he saw no van-accessible parking outside.
At Rudy's Tavern, the Gateway Diner, Nifty Fifties, the Waverly Lounge, Aquarius Restaurant and more than 30 other restaurants and pubs in the Philadelphia area, Lloyd found similar deficiencies and, again and again, he claims to have suffered severe emotional distress.
With the help of a small Bala Cynwyd law firm, Lloyd, 43, of Philadelphia's River Park section, has filed more than three dozen lawsuits accusing these businesses of violating the Americans With Disabilities Act.
Lloyd seeks monetary damages. His lawyers demand legal fees.
And the businesses being sued are in an uproar. Many owners call it an ambush. They say they never heard of Warren Lloyd until he sued them and never received a complaint from Lloyd or any patron who uses a wheelchair.
Most galling, some business owners say, is that they have wheelchair-accessible restrooms that Lloyd would have been welcome to use.
"This is the wrong person to accuse," said Frank Melvin, owner of Casey's, which has two accessible restrooms. "We go out of our way to help the handicapped."
All the suits have been filed by Brodsky & Smith, which demands, with each action, that the business being sued pay its fees - usually $2,000 or more.
Since May, the three-lawyer firm, led by Jason L. Brodsky and Evan J. Smith, has filed more than 100 ADA suits in U.S. District Courts in Philadelphia and Camden.
The plaintiffs are the same: Lloyd or another Philadelphia man, Christopher Hill, 23, of West Oak Lane, both of whom use wheelchairs, and a recently formed nonprofit corporation called the American Disability Institute.
Although Lloyd and Hill declined to comment, the president of the American Disability Institute, Jonathan M. Lax of Wynnewood, said in an interview that the lawsuits are the opening salvo in a crusade he has launched to bring all businesses in the Philadelphia area into compliance with the ADA.
If business owners are upset at the suits filed so far, Lax said, "they ain't seen nothin' yet." The plan, he declared, is to roll out 400 to 500 suits a month until more than 5,000 businesses have been cited for ADA violations.
Lax, 48, who suffers from lymphoma, described himself as a wealthy retired dentist and businessman who is financing the American Disability Institute with his own money. He said he recruited Lloyd and Hill to join his campaign.
"It's not a vendetta," Lax asserted. "It's something I absolutely believe in. No more discrimination."
Businesses targeted most heavily thus far are in Delaware and Montgomery Counties and South Jersey, but Lax said he intends to go after ADA violators anywhere he finds them in Pennsylvania, New Jersey and Delaware.
Similar waves of ADA lawsuits, driven by lawyers demanding fees, have plagued businesses in Florida and California in recent years.
"They just made their way up the [Florida] coast," said Chris Paulitz, spokesman for U.S. Rep. Mark Foley (R., Fla.). "They hit every place they saw, whether it was a diner or a strip club. They even sued a store that sold wheelchairs. It's incredible."
Foley has introduced a bill to amend the Americans With Disabilities Act to require a 90-day notice, allowing an opportunity for a business to correct ADA deficiencies before a suit can be filed.
Experts on the Americans With Disabilities Act, which mandates access to public places for the disabled, say the regulations for the 1990 law are so detailed that perfect compliance is almost impossible. That makes almost any business a potential target for suit.
"I have to tell you," said Mariana Nork, senior vice president of the American Association of People With Disabilities, "I have not found anything that's 100 percent compliant with the ADA."
Nork's Washington-based organization urges talks and negotiations with small businesses - not lawsuits - to accomplish ADA compliance.
Of the lawsuits being filed here, Nork said: "It's unfortunate. I hope the lawyers are in it for the right reason."
Jason Brodsky said that the ADA has been in effect for small businesses for more than 10 years and that the time for compliance is long overdue.
"These places know very well they are supposed to be in compliance with the law," Brodsky said. "They've ignored it."
Bruce McElrath, a longtime advocate for the disabled in Philadelphia, said he had not heard of the American Disability Institute, but added that he was "appalled" by the lawsuits.
"I think the last resort should be litigation," said McElrath, chairman of the Disabilities Rights Advocacy Group. "First you should go and meet with the owner of the business and explain the situation and try to work with them."
The ADA has no grandfather clause exempting businesses in old buildings, but owners are not required to make major structural changes to aid disabled customers. Only "readily achievable" changes, such as widening restroom doors or installing small ramps, are mandated.
Under the law, a disabled person who sues a business to correct an ADA violation cannot recover monetary damages.
But many of the Brodsky & Smith's suits include an "emotional distress" claim under which a business owner can be compelled to pay compensatory and punitive damages.
One suit alleged that Christopher Hill suffered emotional distress because there was no van-accessible parking at Marita's Cantina of Bryn Mawr.
William J. Brennan, attorney for Marita's, shot back that there was no van-accessible parking because the restaurant had no parking lot.
In legal papers, Brennan has accused Hill and the American Disability Institute of bad faith and Brodsky & Smith of abusing the legal process.
Brodsky declined to discuss any specific case but insisted that a careful investigation was conducted before any lawsuit was filed.
"From time to time, on a very rare basis, there could be an error made," Brodsky said. "If we're wrong, we're not wrong very often."
A half-dozen business owners interviewed for this article said they had never heard of Warren Lloyd, Christopher Hill, or the American Disability Institute, and never were approached about an accessibility problem before receiving notice of a lawsuit.
Mario DeLiberty was taken completely by surprise by a suit filed by Hill against his Westgate Pub in Havertown.
"I called up this guy Jason Brodsky and said, 'Are you sure you have the right place?' " DeLiberty said. "I've had wheelchairs in here for 21 years. Never had a problem. You could put a golf cart in our men's room."
Under the ADA guidelines, the center of a toilet in a stall for the disabled must be 18 inches from the side wall.
The toilet center at the Westgate Pub was described in Brodsky's suit as being 17 inches from the wall - one inch shy of the rule.
DeLiberty said he demanded: "Are you suing me for an inch?"
But DeLiberty decided it would be cheaper and more practical to settle rather than fight.
He agreed to move the toilet an inch and to make several other changes in his pub's restroom.
He also agreed - disgustedly, he says - to pay $1,600 in fees to Brodsky & Smith.
"It just broiled me to pay this when I accommodate handicapped people," DeLiberty said. "This is a thing that's all about money - all about dollar bills. I took it on the chin and I guess a lot of other people will, too. They have an endless supply of customers. You can go into every restaurant and find violations."
Patti McCarron, owner of Marrone's Cafe in Ardmore, also decided to settle.
She paid $3,850 in fees to Brodsky & Smith within weeks of receiving a lawsuit in May.
McCarron said she feared the costs would go up if she delayed.
McCarron said she did not object to making the restroom at Marrone's, a 57-year-old family business, wheelchair-accessible.
"The only thing I don't like is that I didn't get a chance to do this without paying $3,800 to the lawyers," she said. "Do you know how many pizzas I have to sell to make $3,800?"
John J. McCreesh 4th, an Upper Darby lawyer, said a fee demand by Brodsky & Smith figured prominently in each of seven cases he is defending in behalf of bars and restaurants in Delaware County.
"It seems to me they're interested in getting attorney's fees out of these cases," McCreesh said. "They want $2,000 in fees for what I can gather is one or two hours' work."
Brodsky denied that fees were the motive for all the suits. "That's ridiculous," he said.
One of McCreesh's clients is Casey's Restaurant & Saloon, which was sued by Lloyd.
The owner, Frank Melvin, said that the restaurant accommodates patrons in wheelchairs on a daily basis and that his staff is trained to assist them getting to and from accessible restrooms.
Melvin said no one at Casey's remembers seeing or speaking to Lloyd.
When he found out about the lawsuit, Melvin said, he telephoned Brodsky & Smith.
"We called them and asked what they wanted," he said. "The lawyer said fees - $2,500."
The ADA is really a civil rights law and was written to be intentionally vague. It's in the eye of the beholder to be in compliance or not. It is one of the worst laws ever written in my opinion.
Perhaps the next time I'm home in PA, I'll put on some dark glasses, halter my shepherd and see how well the offices of Brodsky & Smith comply with the ADA.
Sounds like these business owners need to get together and hire the best P.I. money will buy. After all, there are two sides to every coin.
Actually, some wheelchairer should check out Brodsky & Smith.
You'll see? What a give away. I think that you might be a sightist. < /sarcasm>
Ah yes, but that was in the days BEFORE Jesse Jackson.
His rebuttal skills are impressive!
Their one violation against the tons of money pouring into their coffers from hundreds of businesses being extorted, and they'd probably just laugh at your efforts. If the intent of the law is being thwarted then the law will have to change.
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