Business Owners Beware
By Robert G. Walker, Jr., Esq.
A scourge has been let loose on the land. It threatens every small business with extinction. Many have succumbed already, some are in the process of going down and still more will face doom as the economy continues to head for new lows, all seemingly unarrestable.
At the same time, an evil scheme is spreading to such up what little income and resources still exist for small businesses. What is this scourge? How can we identify and avoid it? By God, man, save us from this hostile influence.
No problem. The "Beast" is Title III of the Americans with Disabilities Act (ADA) or 1990, a federal law that requires all businesses that are open to the public to be accessible to the disabled population to the extent that such accessibility is "readily achievable." While no space invader, toxic attacker or even a foreign influence, ADA Title III is a money-making device for those litigants who have opted for an easy kill (i.e., fast money), by exploiting what was meant to be a remedial law to benefit the handicapped.
This scheme is also not new. It's been growing in use since the mid-90s. This is how it works: a lawyer (usually from south Florida) and a so-called "expert" witness (also from south Florida) team up with a local disabled citizen living in Pinellas County to file lawsuit after lawsuit against noncompliant businesses solely for the purpose of generating a profit.
And profitable it is. Most of the "targets" are small Mom and Pop businesses, often family owned and operated. Thanks to the Information Age, automation and computers, a lawyer and his expert in Miami or Fort Lauderdale can, with only an address, locate the owner in the county property records, obtain the name of the registered agent of any corporation, LLC, trust or a fictitiously named entity. That is all that is needed to file a lawsuit under the ADA in federal court. It goes without saying that there must be at least one impediment to accessibility that violates the ADA. It is conservatively estimated that 80% to 90% of all businesses fall into this category. Thus, targets are everywhere.
And targets ("Tangos" in military parlance) are easy to find. Often the hapless business is first identified from a moving car, from which anybody with any fundamental knowledge of the ADA can spot parking lot violations, lack of identified accessible routes, disapproved entryways and access hardware, misplaced signs, narrow pathways and inaccessible rest rooms. But it is the exterior of the business that beckons the target finder like the lurid lights of Las Vegas. Once multiple parking lot and entryway violations are seen, it is only logical that the publicly available interiors of these businesses will hold many more treasures for the serial litigation team.
There is nothing random or innocent about this scheme. It is intentional, pursued and applied without discretion, sympathy or pity. Because the lawsuit is filed without prior notice, warning or complaint, it is called ambush, drive-by, no-notice litigation. Because the same team of exploiters use a highly automated process to file essentially the same lawsuit against hundreds of businesses, it is also called a "cookie-cutter" lawsuit. They all look alike. The only difference is the name of the defendant, the name of the business (or strip center), and the address. With only those variables being different, these serial suers have filed as many as twenty-one lawsuits in a single day. This "M.O." is well known and highly refined.
And it is perfectly legal. Although the local legal community and the judiciary highly disapprove of this form of manufactured litigation for profit, the law allows it. And the only thing of value is the fees and costs that are part of most every settlement, (unless the business goes out of business during the litigation). That is the profit motive. Pure greed and avarice, without compunction.
This is not a scheme isolated to Tampa Bay. It is national in scope. And the ignorance of the business owner is no defense. Nor is any contract between a landlord and a tenant allocating responsibility. There is no "grandfathering" of prior nonconforming violations. If the property is not accessible according to the ADA Accessibility Guidelines and Florida Law, the owner can be sued. The usual settlement is in the range of $3,500 to $6,500 to the Plaintiff, plus the defendant owner has to pay his own lawyer. Paying one lawyer is bad enough, but paying two lawyers and two expert witnesses, (the Plaintiff's and the Defendant's to counter the Plaintiff's), renders the litigation even more expensive.
But, there is a remedy, if a business owner hasn't been bitten already and forced to conform to the law (or put out of business). The only way to acquire arguable immunity is to beat the plaintiff to the punch. Some form of remediation must be undertaken before the lawsuit is filed. The at-risk business must: (1) hire an architect, licensed contractor or ADA-specific building inspector to survey the property and issue a report as to the present on-site violations; (2) develop a remediation plan from that survey which notes deficiencies, the removal of which is "readily achievable"; (3) implement the remediation plan, even if it is in stages and will take many months to complete. The existence of the remediation and implementation of the plan will present a very real defense to the lawsuit, and that has been recognized by the federal courts in the Middle District of Florida.
Title III of the ADA has proved to be a Golden Goose to those lawyers and their hired guns who have no qualms about suing an innocent business owner who has no intention of discriminating against the disabled. After the lawsuit is filed is too late to get religion. Any changes compelled by the lawsuit are translated into compensation for the plaintiff's lawyer and his expert. The Goose is still spitting out golden eggs, but along with the recession and a fairly dicey economy, those eggs are getting smaller and smaller. But the predators and exploiters will take what they can get. The money is still too good to walk away from.
So, business beware. Protect yourself and your livelihood. Protective measures are far, far cheaper than being a defendant in a federal lawsuit.
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