Last summer, Scot Wilke began hastily making changes at 14 Bones Barbecue, the popular U.S. 1 restaurant he has owned and operated for the past 24 years.
Tipped off by another business owner that out-of-town plaintiffs were suing Vero businesses for non-compliance with the Americans With Disabilities Act, Wilke hired an ADA compliance expert and made alterations to his restaurant’s handicapped parking spaces, restrooms, bar area and entryway.
So when David Poschmann walked into the restaurant at 5:45 p.m. on Aug. 10, Wilke felt confident that he was ready – that he had corrected most of his ADA deficiencies and, at the very least, could show he was making a good-faith effort to comply with the federal law before any suit had been filed against him. Wilke was wrong; Not long after Poschmann’s visit, the disabled Port St. Lucie resident’s Boca Raton-based attorney, Drew Levitt, filed a lawsuit in U.S. District Court, alleging that 14 Bones failed to meet ADA requirements.
Wilke’s Vero Beach attorney, Jason Odom, said the lawsuit was one of about 30 filed against Indian River County businesses since mid-2015. Poschmann and Janet Hoyt of Deerfield Beach have been the plaintiffs in most of cases, but two South Florida men, Francis Martinez and Santiago Abreu, also filed suits in recent months.
All of them are represented by either Levitt or the law firm of Coral Springs attorney Jason Weiss.
Odom called it “legal extortion,” explaining that serial plaintiffs often target small businesses, many of which lack the financial means needed to engage in a costly and difficult-to-win legal battle.
“You’re economically deprived of your day in court,” Odom said. “Are you going to pay $30,000 to go to trial when you can settle for $5,000?”
“They’re exploiting disabled people for financial gain,” Wilke said of his case. “They don’t really care if they achieve compliance or not, because they’ll settle with you without making sure the corrections are made. They never came up here to see what we did.”
In fact, Wilke believes someone other than the plaintiff went on a reconnaissance mission to 14 Bones days or weeks before the defendant stopped in for dinner and drinks – because, he said, several of the deficiencies identified in the lawsuit already had been corrected before Poschmann arrived.
Time-stamped surveillance video and photographs sent to Levitt seem to support Wilke’s claim.
Also, Wilke rejected Levitt’s contention that Poschmann initially entered the restaurant in a wheelchair, saying the plaintiff walked through the door using a cane and stood in line as he waited for a table. Again, the video supports Wilke’s claim.
Wilke said that, once he learned of the lawsuits being filed against local businesses, he researched Poschmann online and knew who he was when he walked through the door.
“We were onto him,” he said. “We knew why he was here.”
Wilke said he personally approached Poschmann’s table during dinner and asked, “Is everything OK? Can we do anything for you?” He said Poschmann told him everything was “great.”
The surveillance video seems to show Poschmann enjoying his visit, during which he ate dinner and, according to Wilke, consumed “three double-shot Jack Daniel’s drinks.”
When Poschmann went to the restroom, two employees were there to verify that the customer encountered no difficulty in using the facilities. “They claimed the grab bars in the stall weren’t accessible, but he never entered the stall,” Wilke said.
A series of emails between Odom and Levitt failed to resolve the issue, leaving Wilke feeling angry and frustrated – which, Odom said, is exactly what the plaintiffs’ attorneys want in these cases.
“They want you to get mad,” Odom said. “They’re daring you to go to court, because it’s in their best interest if you do. That’s how they pile up the hours.”
While Wilke could prove his restaurant met the ADA requirements that could be specifically measured – such as the locations of the toilet, grab bars, sink and soap and paper-towel dispensers in the restroom; the height and depth of the handicapped-accessible section of the bar area; and the size and location of handicapped parking spaces and ramps – he said the law is fuzzy in how it defines accessibility.
“The law is very detailed and, in some places, hard to interpret,” Wilke said. “I’m clear as far as the ADA specialist is concerned, and I have an affidavit from him saying we’re in compliance. But he can’t give me any type of official compliance certification. There’s no such thing. That’s a big part of the problem.”
Or as Odom put it: “Is the entrance to your building accessible? Is there enough room to maneuver in the bathroom? How do you determine whether someone feels impaired? There’s a fair amount of subjectivity as to what compliance is.
“An ADA expert can give you his opinion, which is what Scot got from Larry Schneider, but, again, do you want to spend the money to go to trial?”
Also subjective is whether the corrections needed to meet ADA requirements are “readily achievable without an undue burden or expense,” as Odom said that the law states.
For example: If the cost of making the corrections is $75,000 and the business clears an annual profit only $50,000, the ADA upgrades probably aren’t readily achievable.
But what if the plaintiff and his or her attorney disagree?
“You can’t afford to argue because the meter is always running,” Wilke said. “Every time you go back and forth between the attorneys, the bill goes up.”
Wilke said Poschmann’s lawsuit cost him nearly $30,000, which covered the fees of both attorneys and the ADA consultant, as well as the costs of making the corrections.
And get this: Until Poschmann showed up, Wilke said he had received only one other complaint from a disabled customer in 24 years.
“She was in a wheelchair and asked if we could lower the soap dispenser and make it easier to use the sink in the bathroom,” he said. “We fixed it the next day, and I see her in here all the time.”
Wilke said he hasn’t seen Poschmann in his restaurant since his visit, and he’s not surprised: In the settlement, Odom made sure to include a provision precluding Poschmann from filing another ADA suit against 14 Bones.
But that doesn’t mean Wilke and the owners of other local businesses that already have been sued are immune from another ADA lawsuit filed by another plaintiff. The businesses that haven’t made the necessary corrections are especially vulnerable.
“In most of my cases, the defendants have fixed the problem,” Odom said. “They don’t want to get sued again.”
Odom said the settlements usually range from $2,500 to $7,500, though some attorneys will seek as much as $15,000. However, these lawsuits have been attracting so much media attention recently – CBS’ “60 Minutes” did a Dec. 4 segment on them – that some judges are beginning to question the actual time the lawyers put into such cases.
Also, a congressman from Texas is pushing for an ADA amendment that would require plaintiffs to give up to 90 days notice before any lawsuit.
“The lawsuits are usually very similar, but I have noticed a new tactic,” Odom said. “The plaintiffs’ attorneys are sending letters notifying businesses that they have violations and they have 30 days to correct them.
“The problem is that, in most cases, you can’t bring in an ADA expert and hire a contractor to fix the violation within 30 days,” he added. “So all it does is allow the attorneys to go to the judge and say, ‘Hey, we gave them notice and they didn’t comply, so we had to file suit.’”
