Businesses Facing ADA Suits

by Mark Friedman  on Monday, Mar. 17, 2008 12:00 am  

Jimmy Ashley has filed federal lawsuits against four Jonesboro restaurants and accused them of not meeting Americans with Disabilities Act requirements.

Jimmy Ashley has learned to live with his disability.

The 55-year-old Jonesboro man became a paraplegic after being shot while on duty as a Mississippi County sheriff's deputy in 1980.

Ashley, though, has trouble maneuvering his wheelchair into some Jonesboro businesses.

"That's what I face every day," he said. "It's wrong and I'm tired of it."

In February, Ashley filed lawsuits in U.S. District Court in Jonesboro against four restaurants he said violated the Americans with Disabilities Act by not providing access to restrooms or other sections of the restaurants.

While some states have seen an explosion of ADA lawsuits against businesses, Arkansas hasn't. Yet.

Attorney Edward Zwilling of Birmingham, Ala., who is handling Ashley's cases, said he is talking with clients in central Arkansas and may file more lawsuits. But he declined to comment further on his plans.

Businesses that don't meet ADA compliance could face lawsuits or fines from the Department of Justice; the fines are $55,000 for the first offense and $110,000 for any subsequent violations. 

Settling an ADA lawsuit could cost a business anywhere from $10,000 to $100,000 or more, according to Lawyers Against Lawsuit Abuse APC of San Diego. The price for defending the case at trial could run between $100,000 and $500,000.

Several businesses in Arkansas currently don't meet ADA access requirements, said Jan Baker, an attorney for the Disability Rights Center Inc. in Little Rock.

The "compliance with the ADA in Arkansas remains dismal," Baker said. "We could file suit every day here in our office against some business that we've received a complaint on. ... And they will lose in court."

But she said the Disability Rights Center doesn't like to do that, though it has on three occasions since 2002. Baker's goal is to inform the business owner about the alterations that need to be made to become ADA-compliant.

Zwilling said Ashley doesn't want a big payout from his lawsuits. Rather, he wants the restaurants to make the restrooms and the parking lots ADA-compliant.

"Our goal is not to come in there with an architect and tell them they've got to move walls or do anything major," Zwilling said. "The suit is just designed to get their attention. It's stuff that should have been done 14, 15 years ago."

One of the restaurants Ashley sued is Lazzari Italian Oven in Jonesboro. Ashley said the parking spaces designated as accessible contained access aisles that were too narrow. And the restroom doors are too narrow for a wheelchair, the suit claims.

Ashley wants Lazzari's owner to make the place ADA-compliant and award reasonable attorney's fees and court and other costs related to the suit.

John Flynn of Cabot, an attorney representing Lazzari Italian Oven, called Zwilling "a drive-by ADA attorney," who sues businesses on ADA technicalities as a way to collect attorney's fees and money for his clients.

"We believe we are fully in compliance, and furthermore, our restaurant was constructed prior to [the] ADA enforcement," Flynn said. "We don't believe there's anything out of compliance in our restaurant."

Zwilling said he isn't suing for a payout and is trying to keep the fees as low as possible. His cases "aren't about the fees. They're about getting the barriers removed," he said.

'Make the Changes'

In Arkansas, plaintiffs aren't entitled to damages for ADA access lawsuits; they are in California, where 14,000-ADA related lawsuits have been filed in recent years.

An attorney who reviewed Ashley's four cases for Arkansas Business said the lawsuits don't appear to be the work of a "drive-by" lawyer.

"Most of the items that I saw in these lawsuits struck me as the sort of thing that if [Ashley] has those needs, they do not seem like unreasonable claims," said David Peters, CEO and general counsel for Lawyers Against Lawsuit Abuses. "I did not see any specific claims that seemed so outrageous or so inappropriate."

Peters said if he represented the restaurants, the first thing he would do is stop the meter running on the legal fees by announcing that the changes would be made.

Peters suggests hiring a highly qualified ADA access inspector to examine the businesses and make changes based on those assessments.

"Don't just change what the plaintiff needs," he said. "Make the changes that you should have made in '92."

And if the business owner can't make all the alterations immediately, there's a way of spreading them out over time, Peters said.

"It doesn't do anybody any good to keep the plaintiff's attorney on the clock," he said. "Let's get rid of that guy."

A Question of Ambiguity

The purpose of the Americans with Disabilities Act of 1990 was to provide clear and enforceable standards addressing discrimination against people with disabilities. The problem arises, however, in trying to figure out how much access to a commercial enterprise is required.

When a commercial building is renovated, it must meet the ADA requirement for a new building, which spells out how wide doorways have to be and the dimensions in the restrooms, said Diego Demaya, a legal specialist with the Disability Law Resource Project of Houston.

But if a section of a building is being renovated, then only that section has to be ADA compliant, not the whole building, Demaya said.

"Let's say they are renovating the entire dining hall, but they are not renovating the kitchen area," he said. ADA requirements "wouldn't require them to consider making the kitchen area accessible. It would only require them to make the dining hall accessible, which will be the main entrance, the parking lot and the bathrooms that attach to that area."

The rules for existing buildings are the source of much confusion.

"The law is ambiguous as to what is required," said Elizabeth Milito, senior executive counsel for the National Federation of Independent Business in Washington, D.C.

Milito said business owners want to comply with ADA requirements but are uncertain about what exactly needs to be done.

"For older buildings, pre-1990 buildings, the law requires that businesses move existing barriers, as barriers can be removed without much difficulty or expense," she said.

The question she then gets from business owners is how far they need to go to make their businesses accessible. Milito said many business owners think a "grandfather clause" exempts older businesses or older buildings from meeting ADA requirements.

"Not true," she said.

And some business owners think they aren't required to meet ADA requirements if they lease space. That's not true either, Milito said.

Even Matt Modelevsky of Jonesboro, who is defending the Brick House Grill and the combination Taco Bell and KFC location in Jonesboro in the lawsuits brought by Ashley, said he needed to investigate whether the businesses are ADA-compliant.

"Obviously my clients are concerned about doing that and making their facilities open to individuals with any number of handicaps," he said. "They want to comply with ADA. ... At this point, I'm not sure that they aren't in compliance."

Ashley sued a fourth Jonesboro restaurant, Main Street Pizza, because he couldn't get to the restroom, which is upstairs on the second floor.

Main Street Pizza owner Mustafa Ergun said he didn't know of any ADA complaints and hadn't seen Ashley's lawsuit.

Ergun said Main Street Pizza was in a building that he didn't own, but he would ask the landlord about making the bathroom accessible. Ergun also said customers should approach him with any ADA complaints and he would try to address them. 

Restrooms are one of the problem areas that make a business a prime target for an ADA lawsuit.

"If you provide restroom facilities to the general public, they need to be fully accessible," Lawyers Against Lawsuit Abuse said in a report about avoiding ADA lawsuits. "Certainly, the access door is a major red flag, but there are a host of other compliance issues as well."

'Alarming' Survey Results

Baker, the attorney for the Disability Rights Center, said business owners often think they are in compliance when they are not.

In 2002, the Disability Rights Center surveyed 94 central Arkansas restaurants that initially said they were accessible to people with disabilities. The DRC investigated and found only six restaurants met all the ADA standards for having accessible parking, an accessible route to the front door and an accessible entrance.

The DRC called the results "alarming."

Baker said restaurateurs sometimes tell her that they don't think they have to comply with the ADA because no disabled people eat at the restaurant. But the truth is just the opposite, she said: Disabled people don't eat at the restaurant because it isn't accessible.

The only way to enforce the ADA law is through a lawsuit or by filing a complaint with the Justice Department, Zwilling said.

"There is no ADA police," he said. "It comes down to [people with disabilities] are the only folks that are really charged with enforcing it."

Ashley said he hopes his lawsuits result in his gaining full access to the restaurants. He said some of the business owners he has sued are his friends.

"It has nothing to do with friendship," Ashley said. "They should have been in compliance.



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