Numerous lawsuits have been filed against nearly 30 Midland businesses by two local plaintiffs and their Florida-based lawyer for violations of the Americans with Disabilities Act.
The lawsuits primarily involve parking lot violations, which has led the businesses — most of which are located on the city’s south side — and the Chamber of Commerce to suspect they are what can be considered “drive-by lawsuits.”
“The way these suits have come about, it appears that the goal is not about generating compliance, but about being litigious and getting settlement amounts,” said Nellwyn Barnett, executive vice president of Chamber Relations.
Barnett and Richard Hunt, a Dallas-based lawyer representing some of the businesses, said that the settlement amounts have been anywhere between $6,500 and $9,500.
The businesses include La Mision, Steak 42, Johnny’s BBQ and 7-Eleven. The primary plaintiff is a James W. Close, who is represented by Ronald Stern of the Advocacy Law Firm P.A. out of Hallendale, Florida.
“The violations are almost all just parking,” Hunt said. “In some cases, the businesses have no designated handicapped parking at all, but in other cases, the signage or striping does not comply with the requirements of the ADA. For example, how wide the parking space and the striped aisle next to the space is, or the access ramps to the building front are not done correctly.”
There is no question the violations are real and that the businesses must comply with ADA requirements, according to Hunt and Barnett. However, the way the businesses have been notified of their violations — by being sued — has caused a stir.
“I’m completely confident that (the plaintiffs) got in a van and drove around looking for parking problems, and they look for parking problems because you can do that without getting out of the car,” Hunt said in a phone interview. “The businesses should fix their parking. My only disagreement with Mr. Stern is how much money he wants for the time.”
When asked about the violations, the businesses the Reporter-Telegram reached out to stated they did not know they were in violation and, if they had been notified, they would have made the fixes immediately.
Plaintiffs and their lawyers are not required by law to notify a business before suing, but the motive behind not sending a notification letter first is up for debate.
“If you send a demand letter, and the problem is something easy to fix — like parking — the defendant may fix the parking, and then when (the plaintiff’s lawyer) comes to them and says we want to settle with you because of your ADA violation, the defendant can essentially turn his nose up to the lawyer and say, ‘I fixed it, you can’t sue me now,’” Hunt said. “You would expect a lawyer to send the demand letter, but they don’t. And the reason they don’t is because they don’t want the problem fixed before they can file a lawsuit because only when they file a lawsuit do they have the leverage to enter into a settlement to get some money.”
Under the ADA, the federal court can order the business owner to fix the problem and pay the plaintiff’s attorney’s fees.
“If it’s a minor violation we notify, because for minor violations, it’s cost- prohibitive, time-prohibitive (to sue),” Stern said in a phone interview. “For major violations, we file without notifying. Major (means) things like parking, restroom facilities, etc. If it’s just a sign, we won’t sue. There have been multiple violations at the businesses we’ve sued.”
In California, under state law, a plaintiff can receive as much as $4,000 for each violation a place of business has. In Texas, however, the state law is very similar to the ADA, meaning there’s not much monetary incentive for the plaintiff.
“What the state law says is you (the plaintiff) do get money damages, but you don’t get attorney’s fees,” said Brian East, a senior attorney with Austin-based Disability Rights Texas. “So if you tried to go to a 7-Eleven, and the parking wasn’t striped right, you’re unlikely to get much in the way of damages.
“You may win your case, but it’s not like it caused you a bunch of physical harm. It’s just that you can’t get into the store like everyone else can. So, the damages are likely to be very small, like in the hundreds of dollars,” he said.
The minimum damages award under state law is $300, East said in a phone interview.
Nonprofits such as Disability Rights Texas are more likely to take these kinds of cases than private lawyers because they have other funding sources, East said.
“State law is talking about damages and no fees, and federal law you don’t get damages, but you do get fees,” he said.
Stern is incorporating a corresponding statement in the federal complaints so that the state court claim will also be heard, he explained in an email.
“We often hear that this is driven by the plaintiff trying to get rich,” East said. “But to me, in Texas, that doesn’t make too much sense because the plaintiff doesn’t get much. There has been a fair amount of backlash against people who are enforcing the ADA because mostly they’re not suing under the state law.
“The bigger fussing around this that I’ve seen is in a state like California, where there is a pretty substantial monetary award, so a lot of people are thinking they’re just running up these cases to get that money,” East said. “Well, you don’t get that money under the ADA or state law.”
Certainly, the lawyer has some monetary incentive, but East believes even that wouldn’t be the main impetus given the payoff is no more than a regular paying client.
“Our interest is for them to make the modifications not to assign blame,” Stern said. “It’s in the social public interest to settle these cases rather than get into protracted litigation because, in my opinion, once everybody settles, these places become compliant.”
Most of the violations are caused by ignorance and not willful disobedience.
The majority of the businesses being sued in Midland are older establishments, which means they would be held to the original 1991 standards set by the ADA. Businesses built after 1991 must comply with the 2010 updates to the federal law. The Texas Accessibility Standards (TAS), created in the 1990s and updated in 2010, are almost identical to ADA.
Many older businesses mistakenly believe that, because they are older, they don’t have to update their accessibility — in effect, that they are grandfathered into compliance.
“We often hear this business is grandfathered in, meaning it existed before the ADA,” East said. “Although that certainly lessens their obligation, it doesn’t eliminate it. So if, for example, all it would take is a $1,000 curb cut or $200 to erect a sign in the parking lot, that’s probably required for a building that’s been there since 1980 because it doesn’’t cost much. But if you’re talking about something that is very expensive, then the obligation is less.”
In theory this is true, but in practice it isn’t, Hunt said.
“There are a lengthy set of guidelines — how wide aisles have to be, doors etc. — that the owner is obligated to,” he said. “The exact words are, ‘remove barriers to access if it is readily achievable.’ Readily achievable means something like, not too expensive.
“But here’s the practice: The courts had said anything that doesn’t meet the current standards is a barrier to access. In defining what’s readily achievable, they look at it and say if the cost is the kind of cost you would pay to stay in business, then it’s readily achievable. Basically if it doesn’t bankrupt you, you’re probably gonna have to do it.”
Each case is different, but the main problem is lack of education for these businesses so that they don’t discriminate against those with disabilities in the first place, Hunt said. Many city ordinances and TAS requirements overlap ADA requirements or are similar, but they are not exact.
“The real solution to these lawsuits is for the federal government to do a better job of educating businesses,” Hunt said. “Businesses do have some responsibility for knowing the law, but, in my mind, the greatest problem here has been the failure of the federal government to engage in any kind of meaningful education campaign.”
Of course, ignorance of the law is no excuse for not abiding by it.
“The other way to look at it is, this has been the law for 25 years and you shouldn’t just sit there and not make your place accessible hoping you don’t get sued, and when you get sued say you’re unfairly picking me out,” East said. “There’’s a similar pattern in Austin right now, and everybody is like all of a sudden there are all these lawsuits, but when you look at it, this person is in a wheelchair and he’s suing all of the businesses that he goes to so they’re all near his house. It’s in a short period of time and it’s a bunch of them, but it’s probably because that person finally found a lawyer who would work on what he encounters.”
Close, who was unavailable for comment before deadline for this article, uses a wheelchair and is legally blind. Though most of his allegations relate to parking lots, others do not. In a lawsuit against a local 7-Eleven — which has been settled — Close alleged that “pipes and sharp surfaces” under the sink were exposed, that there were no grab bars installed in the toilet stall and that “door handles are of the round style requiring tight grasping and twisting of the wrist.”
The suit states that these barriers create a “real and immediate threat of personal injury.”
“The ADA has been around for about 25 years and it requires that there are no barriers to people like my client,” Stern said. “We’re asking for the court to order (the businesses) to make these changes to the degree of being readily achievable. We’re not asking them to go bankrupt. We’re asking them to put in a designated spot or make some simple fixes so someone in a wheelchair can ambulate around. That is not asking too much.”