M ARIO DELIBERTY had been living a small businessman’s dream. Twenty-one years ago he opened up the Westgate Pub in Havertown, Pennsylvania, after buying a seedy bar—”a real trash can, everything covered in grease and nicotine,” he says—and turning it into a spiffy family restaurant. But one day last year DeLiberty opened his mail and learned that he was be- ing sued. A group called the American Disability Institute said DeLiberty’s pub failed to comply with the federal Americans With Disabilities Act (ADA), which requires that businesses be accessible to the handicapped.
Some of the alleged violations at the Westgate Pub were laughable; : a toilet that was supposed to hang 18 inches from a wall was only 17 inches away, for instance. Others were off the mark. The suit complained that Westgate’s parking lot had no handicapped space—but DeLiberty says the lot is run by the local township. (In San Diego, California at Grand Ave. & Lamont Street, the “31 Flavor” Baskin & Robbins store were forced to provide mandated handicapped parking with the final result that their 3 spaces in front of the store became 2 handicapped spots. They performed as ordered---- a nice ice cream shop in Pacific Beach closed from lack of parking for what had been a fast pick-up type stop.)
Meanwhile, he had served handicapped patrons for years, letting one customer regularly bring in his Seeing Eye dog, and never heard a single complaint. Moreover, DeLiberty would have been willing to make any necessary changes if given the chance. He wasn’t. The message of the letter, he says, was clear: “We will close you down.” There was one possible way out, though. DeLiberty could settle the ease for $2,100. Worried about an expensive legal battle, he bargained down to $1,600 and paid up. And that was it. “I never heard from them again,” he says.
Before long, DeLiberty learned he was one of dozens of local businesses targeted in this way. The founder of the American Disability Institute, who is a retired dentist, told the local newspaper that he planned to file more than 5,000 similar suits, potentially reaping millions of dollars in settlements. “They throw fear into you,” DeLiberty says. “The fear that all the blood, sweat and tears you’ve put into your business is going to go down the drain
Welcome to one of the seediest legal ruses going. In recent years, a number of profiteers have used the ADA to blind-side thousands of small businesses nationwide. They demand four- or five-figure settlements over problems that may cost a few hundred dollars to fix. The targeted businesses often receive no warning, and once the lawyers have been paid, they can disappear as fast as they came. Some say that it’s little more than a slick protection racket. The scheme works because business owners are scared of litigation. It takes deep pockets to fight back, as actor Clint Eastwood discovered when he faced an ADA suit against his inn in Carmel, California. In the end, a jury decided he didn’t owe the complainant a cent, yet Eastwood’s costly defense took close to four years. The shameful thing is that money-hungry attorneys are corrupting a law meant to help the most vulnerable living among us.
The ADA was enacted in 1990 to protect America’s 50 million disabled people from job discrimination and to require efforts to make public places accessible to them. But the access part of the law is extremely complicated—many would say over the top—detailing everything from counter-top heights to mirror placement. Bathrooms alone may have to meet dozens of specifications. Even the most diligent person can fail to follow every rule, thereby inviting shakedown artists to ply their trade.
Just last year, the Pennsylvania law firm of Brodsky & Smith filed more than 100 ADA suits there and in New Jersey. In Florida, the Miami firm Fuller, Mallah & Associates racked up more than 700 lawsuits from 1998 to 2001. Another Florida lawyer, Robert Bogdan, helped start an outfit called Citizens Concerned About Disability Access before unleashing his own slew of lawsuits. No business, from a mom-and-pop store to a big chain, is safe. One suit in Lake Worth, Florida, named a wheelchair store whose owners are disabled. Another targeted a strip club whose private lap-dance room was up a flight of stairs. And the list is growing, with suits springing up in at least 29 states. A major oil company changed their policy nation-wide and closed all public restrooms rather than comply.
The ADA-lawsuit king may be George Louie of Oakland, California, who claims to have filed 300 in one two-week period in 2002. A typical Louie settlement offer demands up to $10,000—enough to break the back of a small business owner. According to Walter K. Olson, writing in City Journal, some of Louie’s settlements have totaled as much as $100,000. Louie has no sympathy for the businesses he targets, saying they’ve had years to comply with ADA rules. “You know that if you go in and rob a bank you can’t claim ignorance of the law,” he argues.
Bank robbery? Exactly who is robbing whom?
Because the ADA’s rules can be so complex, “small businesses might not even be aware of the requirements,” says Mariana Nork of the 80,000 member American Association of People With Disabilities. “We advocate giving them a chance, telling
them what the right thing to do is.
But for ambush-artists like Louie, fair warning might mean no profit. “I call it drive-by litigation,” says Republican Congressman Mark Foley of Florida. “They’re not looking for compliance, just a financial settlement.” Foley is now pushing a bill to require 90 days’ advance notice before any ADA lawsuit. They can’t crack down soon enough for DeLiberty. “This is legalized extortion,” he says. “These guys are just thieves with suits.
Michael Crowley, a regular columnist for Reader’s Digest,
is also an associate editor at The New Republic magazine.
Write to him at: firstname.lastname@example.org
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