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MY VERO: Vero businesses hit by a rash of ADA lawsuits

My moral compass has only two directions – right and wrong – so columns like this tend to get me in trouble.

This is especially true when I take sides on an important societal issue that is personal and emotional to many of you, and when compelling arguments can be made on both sides.

Such is the case with the recent rash of federal lawsuits filed by two out-of-towners against Vero restaurants, hotels and shopping plazas.

Some of you, I’m sure, see the Americans with Disabilities Act as sacred and, because it was enacted more than 25 years ago, believe it should offer no leeway to businesses that still fail to comply with it.

Others, while fully embracing the spirit and protections provided by the ADA, believe a flaw in the law is being exploited and abused by opportunistic lawyers working in cahoots with plaintiffs whose motives may not be exactly pure.

Count me among the others.

The ADA was intended to provide equal opportunity for persons with disabilities in employment, government services, public accommodations, commercial facilities and transportation.

It was not intended to provide a revenue stream for lawyers who have seized upon the ADA’s minutia-filled regulations and attorney’s-fees provision to file, without consequence, clusters of lawsuits against unsuspecting businesses, including many that didn’t know they were not in compliance.

But that’s what’s happening.

“ADA lawsuits have become a cottage industry,” said Vero Beach attorney Jason Odom, who is representing half of the 12 local businesses who have been sued in the past two months by either Janet Hoyt of Deerfield Beach or David Poschmann of Port St. Lucie.

“I’ve handled about 15 of these suits over the years, but until recently, we really hadn’t seen them in more than 10 years,” he added. “The law was revised in 2010, so maybe that has something to do with it. If you look at the places that have been sued, they started in South Florida and have moved north.

“Obviously, they’re here now, and we’re probably going to see a lot more of them.”

Hoyt filed ADA suits in July against seven local businesses: Vero Beach Hotel & Spa; Islander Inn; Bobby’s Restaurant & Lounge; Mr. Manatee’s Casual Grille; Lemon Tree; Chive; and Hampton Inn & Suites at Miracle Mile.

Poschmann has filed ADA suits against: Kelly’s Irish Pub; Brain Freeze Cafe; Beef O’Brady’s; Arby’s; and Indian River Plaza, located on U.S. 1 at 15th Place. His suits were filed between June 16 and Aug. 2. And, as Odom said, more could be coming.

Poschmann, whose leg was amputated because of a medical condition, was seen dining at another Vero Beach restaurant last week, prompting speculation that he’s not done checking local businesses for ADA compliance.

“I doubt his visit was a coincidence,” Odom said. “Since we found out about these recent suits, I’ve been calling clients and friends who own businesses locally and alerting them to what’s going on.”

Poschmann has filed nearly 90 ADA lawsuits in addition to those in Vero this summer, all of them in the U.S. Southern District of Florida, with Boca Raton-based Drew Levitt as his attorney. Hoyt has filed 51 such suits in total – 43 of them in the Southern District, eight in the Middle District – represented by the Weiss Law Group in Coral Springs.

Almost always, the businesses they’ve sued have opted to settle the cases, agreeing to make the necessary upgrades and pay the plaintiffs’ attorney fees.

Odom expects the same to happen here. “All it takes to get sued is to have one mirror or paper-towel dispenser too high, or not have enough handicapped-parking spaces, or it could be any one of a bunch of other things required by the law,” Odom said. “So unless you’re absolutely sure you’re right, you’re probably not going to spend $25,000 to $30,000 to hire someone like me to fight it.

“If you fight it and lose, you’re also going to pay the plaintiff’s attorney’s fees, as well as the costs of the upgrades to the building,” he added. “It’s a losing proposition.”

It’s easier, and a lot less costly, for business owners to simply agree to make the necessary improvements and pay the attorney’s fees before they get too high. And that’s what Odom usually advises.

If the client agrees, Odom said he immediately tells the plaintiff’s attorney to stop working on the case, because the defendant agrees to bring the business into compliance and pay $1,500 in legal fees.

“If all that’s been done is filing a lawsuit, you couldn’t possibly have spent more than that,” Odom said. “I’ve heard of some attorneys who ask for $10,000 or $15,000, but that’s probably if you try to fight it for a while.

“But if you’re willing to settle right away and agree to have everything fixed in 30 days, no judge would give the attorney that much money. I don’t know how you could justify it.”

No one at the Weiss Law Group would comment on Hoyt’s lawsuits against the Vero Beach businesses.

Levitt, however, said Poschmann is one of “five or six” clients who pursue ADA cases. He refused to say how much his firm seeks in attorney’s fees when cases settle.

“It can be a big range,” he said, “depending on a number of factors.”

I’m guessing the size and success of the businesses being sued are among those factors, but that’s because I don’t believe the plaintiffs in these ADA cases are well-meaning do-gooders filing these suits simply to make America a better place for the disabled.

Instead, I believe the ADA is a flawed law that’s being exploited and abused across America by lawyers who have nothing to lose and lots of money to gain.

How else do you explain some law firms filing hundreds of ADA lawsuits on behalf of the same clients, none of whom are eligible to receive monetary damages from the court?

Are we supposed to believe that it’s mere coincidence that the same disabled plaintiffs just happen to find themselves in restaurants, hotels and other businesses – sometimes an hour or more away from their homes – that aren’t ADA compliant?

Are we really supposed to believe these repeat plaintiffs are doing this for purely altruistic reasons and aren’t being financially compensated?

Levitt, for one, said he doesn’t believe it would be illegal or unethical for lawyers to give ADA plaintiffs a gift or a consultant’s fee after cases settle. But he said his firm doesn’t pay clients and has encountered no problems with the lawsuits it has filed.

“He’s got a lot of cases, but he’s not looking for them,” Levitt said of Poschmann. “If he sees something when he’s out and about, he’ll call us and we’ll check it out. If it’s something minor, we won’t do anything. But if it’s something significant, we’ll file a lawsuit.”

What’s significant?

Levitt cited the ability to park and enter the establishment, sit in the same areas as able-bodied customers and have full access to restrooms.

“Bathrooms are a huge problem,” he said, adding that many non-compliant businesses don’t provide enough room to maneuver in wheelchairs, have urinals, mirrors and soap/paper-towel dispensers that are too high to reach, and fail to properly position grab bars in stalls.

Indeed, bathroom problems – something Levitt said can be “degrading” to disabled patrons when they’re in public establishments – are among the non-compliance issues identified in many ADA lawsuits.

And without private citizens filing lawsuits, Levitt said, many of these businesses would not make the effort to meet the ADA’s standards.

“The Justice Department can bring ADA compliance cases, but they don’t have the manpower to go into every business in the country” Levitt said. “So they depend on private citizens . . . to enforce the statute by bringing cases.”

That, he added, is what Poschmann does “as he goes about his daily routine” – at his own expense, with no set plan, with no prodding or financial incentive.

“This may be hard to believe,” Levitt said, “but David doesn’t get up in the morning looking for places to sue.”

He’s right: It’s hard to believe, given how many lawsuits Poschmann has filed and settled with businesses from South Florida to Vero Beach, where he might be just getting started.

I made an interview request through Levitt, but Poschmann didn’t call. And that’s too bad.

There’s a question I really want to ask him: If all he cares about is making sure our restaurants, hotels and other businesses are ADA compliant – if this isn’t about the money – then why does he immediately file a lawsuit?

Why doesn’t he first take his concerns to the owner or manager of the non-compliant establishment, identify the deficiencies he encountered and then give the place a reasonable amount of time to address them?

Why not try to correct the problems without going to court?

“Those are very good questions,” Odom said.

They are questions we probably don’t need to ask Hoyt, who, according to Odom, visited Mr. Manatee’s, Chive and Lemon Tree in a three-hour period.

They are questions we do need to ask the Justice Department, which Odom said could tweak the ADA to include a notice provision, so that businesses would be given the opportunity to come into compliance with the law before a suit could be filed.

“You should have to give notice, even if it’s only 30 days, so that these businesses have a chance to address the deficiencies,” Odom said. “If there were such a provision, you’d rarely see ADA suits filed.

Levitt said the lawsuits are necessary – because, he argued, most non-compliant business owners are already aware of the ADA requirements but choose to ignore them until they’re sued. He said warning notices also would be ignored.

Bobby McCarthy, owner of Bobby’s Restaurant & Lounge, said he’s tempted to fight Hoyt’s ADA suit, which he called a “shakedown tactic.” He said he addressed the necessary improvements “six or seven years ago” and had no idea he wasn’t compliant.

Hoyt’s suit cites the positioning of mirrors, flush controls and dispensers – toilet paper, toilet-seat covers and paper towels in the restroom – as well as the restroom itself. It also mentions improper counter heights and inadequate access to seating at the bar.

“All of a sudden, she walks in and I’m no longer in compliance?” McCarthy said. “She’s got to be making a living off this, and so are the attorneys. Why else would she be up here, going to all these places and nit-picking, looking for problems.

“This should work the same way as the Health Department,” he added. “If there’s a violation, they notify you and you take care of it. And if you don’t, then they lower the boom.”

That’s how it should work, but it doesn’t. Or as my moral compass tells me: The ADA is doing what’s right, but in too many cases, it’s doing it the wrong way.

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