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Lawsuits alleging noncompliance with the Americans with Disabilities Act are popping up all over, including in Cleveland. Questions, though, have arisen as to attorneys’ motivations.

May 14, 2007
By JAY MILLER

Local hotels and shopping centers as well as the city of Shaker Heights and the Greater Cleveland Regional Transit Authority have been hit with lawsuits by what has been described by one local attorney as “professional plaintiffs” alleging violations of the Americans with Disabilities Act.

More than 50 lawsuits have been filed in U.S. District Court in Cleveland since late 2005 by Disabled Patriots of America of Lake Worth, Fla., which charges the businesses and public entities with failing to make their facilities accessible to the disabled. Among the defendants are Westlake’s Crocker Park, the Galleria at Erieview, Shaker Square and the Holiday Inn Express Hotel & Suites on Euclid Avenue in Cleveland.

The suits are similar to those filed by what one federal judge described as a “cottage industry” of lawyers and litigants that is operating across the country.

The San Diego-based Lawyers Against Lawsuit Abuse states on its web site that it is monitoring 7,000 such lawsuits in California alone. Called “drive-by lawsuits” in both the legal and disabled communities, the actions appear relatively benign, asking only that violations of the disabilities act be corrected because the law does not allow plaintiffs to recover monetary damages.

However, courts can award attorneys’ fees, and those sums of money appear to some observers, including Cleveland attorney Bruce Hearey, to be the motive for these lawsuits.

“The end result may make some sense, but their tactics are flat-out wrong,” said Mr. Hearey, who has represented defendants in several ADA lawsuits and whose daughter is in a wheelchair.

“This particular group’s tactics are more about remunerating the lawyers than fixing anything,” said Mr. Hearey, who referred to the Disabled Patriots group as “professional plantiffs.”

Legal fees in these cases can run from $10,000 to $20,000, said Mr. Hearey, an attorney with the Cleveland office of the Ogletree Deakins labor and employment law firm.

Put to the test

Crain’s Cleveland Business reviewed more than a dozen lawsuits filed locally by Disabled Patriots. In those suits, Disabled Patriots and a member of the group who is disabled state that the named plaintiff was denied “full enjoyment” of a facility because some parts of the property were inaccessible to the plaintiff, which is a violation of the disabilities act.

In some cases, the named plantiff is described as a “tester” who visits places open to the public for the purpose of testing barriers to access. Among the alleged violations that have been cited in the lawsuits are not enough parking places for the disabled, restrooms with insufficient maneuvering clearances, and hotels lacking one or more rooms with roll-in showers or water closets that cannot be easily flushed by the disabled.

In its lawsuit against the city of Shaker Heights, Disabled Patriots states among various alleged violations that counters in the public library were too high and the city’s Thornton Park swimming pool lacked all appropriate handrails. The suit goes on to say that the defendant “has known for at least sixteen years of its duties and obligations under ... ADA to complete the necessary and required changes.”

William Gruber, chief counsel in the Shaker Heights law department, said the city had not heard a complaint from the group until the lawsuit was filed last October. Mr. Gruber acknowledged that some problems exist, but questioned why concerns weren’t raised directly to the city rather than through a lawsuit. He said negotiations to resolve the lawsuit are ongoing.

RTA spokesman Chad Self said the transit agency had not yet been served with the lawsuit against it, which was filed in late April.

Plaintiff of choice

Disabled Patriots is one of several groups around the country that is filing ADA access lawsuits. It is a Florida nonprofit organization that because of its small size is not required to file federal tax forms.

Attempts to reach Maria Gallagher, listed as the group’s president on its most recent annual report, were unsuccessful. The telephone number listed for her and the group on its 2005 annual report, the latest on file with the Florida Secretary of State’s office, has been disconnected.

Typically, the lawsuits name an individual member of the organization and the organization itself as plaintiffs. In nearly all of the 30 lawsuits involving defendants in Northeast Ohio, a woman named Bonnie Kramer is identified as the plaintiff.

The attorney who filed Disabled Patriots’ articles of incorporation with the Florida Secretary of State in 2002 is Todd W. Shulby of West Palm Beach, one of a handful of attorneys filing the ADA lawsuits in federal court in Cleveland. A call to Mr. Shulby was returned by his co-counsel on many cases, Guy M. Shir of Boca Raton, Fla.

Mr. Shir would not disclose the address or the phone number of Ms. Kramer. He only would say she lives in Northeast Ohio.

Mr. Shir was unapologetic about filing a lawsuit without first writing a letter of complaint. He said property owners have had as long as 17 years to understand the ADA guidelines and to make changes.

In the early years of the ADA, Mr. Shir said, a disabled person would send a letter to a property owner asking that access be brought up to the ADA standards.

“The disabled person would get a letter back thanking them for their concern and saying they would take appropriate action,” he said. “But (the letter) would go into the circular file” and nothing would happen.

A judge's rebuke

Nationwide, few of the cases that defendant lawyers complain about reach a courtroom, though in a handful of cases judges dismissed the complaints and issued stinging rebukes of the plaintiffs and their attorneys.

In a case in a federal district court in Los Angeles, the judge described the plaintiff as engaging in “a well-established pattern of abusive litigation” and granted summary judgment in favor of a Solvang, Calif., restaurant.

In a case in a federal district court in Orlando, Fla., Judge Gregory A. Presnell, who described the ADA access litigation as a “cottage industry,” complained about the tactics of the plantiffs. In his opinion, Judge Presnell noted that the plaintiff filed his lawsuit less than a week after his attorney verified ADA deficiencies at Sandy Lake Towers Hotel in Orlando without notifying the hotel of the problems and offering it a chance to fix the problems on its own.

“Wouldn’t conciliation and voluntary compliance be a more rational solution?” h wrote. “Of course it would, but pre-suit settlements do not vest plaintiff’s counsel with an entitlement to attorney’s fees.”

Judge Presnell found in favor of the defendant. The attorney who filed that lawsuit on behalf of Disabled Patriots was Todd W. Shulby.

Mr. Shulby’s associate, Mr. Shir, defended the legal fees involved in ADA disputes.

“If legal fees weren’t involved — attorneys like everybody else have to make a living — you would have a system where a person like Bonnie (Kramer), who has little means available to her, couldn’t get representation,” Mr. Shir said.

Disability groups disagree

Some disabled rights groups are critical of these lawsuits, while others prefer to give litigants the benefit of the doubt.

Andrew Imparato, president of the 100,000-member American Association of People with Disabilities, spoke out on the issue during a recent dispute in California over a group of cases filed by one individual.

“There are these individuals and boutique law firms that make a business out of filing 75 claims at a time, and it leads to a strong backlash against the ADA and it can do harm to the cause of increasing access for those with disabilities,” Mr. Imparato said. “The point of this law is not to shake down businesses and make money off them. The point is to improve accessibility.”

However, Linda Kilb, an attorney for Disability Rights Education and Defense Fund Inc., a national law and policy center in Berkeley, Calif., was reluctant to criticize such legal tactics. Ms. Kilb said the ADA access requirements have been law since the early 1990s and that private lawsuits are a key mechanism for enforcing the ADA law.

“The only thing that brings (defendants) to address this was that somebody brought a lawsuit,” Ms. Kilb said. “And without the ability to get the lawyer paid, you’re never going to find a lawyer.”