# Disabled man sues gas station over alleged ADA violations



## mark handler (Oct 11, 2010)

10/6/2010 8:00 PM By Michelle Massey, East Texas Bureau

SHERMAN-A disabled Texas man has filed a lawsuit against a gas station claiming the business is not in compliance with the American with Disabilities Act's Accessibility Standards.

Acting as his own attorney, Enoch S. Doyle filed suit against Chapmon Inc., Ebenezer International and Does 1 through 20 on Sept. 28 in the Eastern District of Texas, Sherman Division.

Doyle states the Shell Service Station located on E. 14th St. in Plano has failed to provide the minimum legally required access for accommodating disabled people. He argues the station is "illegal, degrading and humiliating."

According to his complaint, the shopping area has merchandise protruding into the aisles, payment transactions are conducted more than 36 inches from the floor, there is no disabled parking and there are pot holes and uneven surfaces in the parking lot.

Further, he states the restroom has several violations including lack of grab bars, lack of floor space and a mirror located more 40 inches from the floor.

The defendants are accused of violations of the Americans with Disabilities Act, violating Texas regulations and statutes and general negligence.

Doyle is asking the court to issue an injunction to prevent the defendants from further discrimination, for an award of actual damages of $25,000 and statutory damages of $100 per violation, and for an award of litigation expenses and costs.

U.S. District Judge Richard A. Schell is assigned to the case.

Case No. 4:10-cv-00511

http://fwix.com/houston/share/c3b960b130/disabled_man_sues_gas_station_over_alleged_ada_violations


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## brudgers (Oct 11, 2010)

I just attended a meeting at a local business.

No H.C. parking.

No Curb cuts.

Etc.

That's why litigation is required.


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## Uncle Bob (Oct 11, 2010)

This is normal everywhere.  Bathrooms are locked or always out of order, and not available to the public at many gas stations.  Besides being an ADA violation; it the responsibility of the local AHJ to enforce any requirements for public facilities; and the local AHJs do not enforce their own accessibility requirements.

People should start filing formal written complaints with the AHJ; and, follow up the complaint.  If the municipalities don't enforce their code requirements; they should be taken to court also; and the newspapers, and the State Attorney Generals Office.

People shouldn't have to go to court with ADA complaints; but, they have no choice when the municipalities willfully refuse to enforce their own codes.

Uncle Bob


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## Rick18071 (Oct 11, 2010)

Here in PA they can do what they want after the owner gets a C. O.


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## mtlogcabin (Oct 11, 2010)

We are not the ailse police. nor the pothole police nor even the bathroom police.

101.2 Scope.

The provisions of this code shall apply to the construction, alteration, movement, enlargement, replacement, repair, equipment, use and occupancy, location, maintenance, removal and demolition of every building or structure or any appurtenances connected or attached to such buildings or structures.

If it was okay when the building was finaled it is okay today. We have no jurisdiction over the day to day operations of a building nor can we make a business comply with accessibilty if no work is being done that requires a permit and if it does it is limited to a maximun 20% of the cost of the work.



> He argues the station is "illegal, degrading and humiliating."


 Unless it is the only station in town he is free to patronize any other gas station he chooses and spend his money on a business that supports accessibility.


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## Coug Dad (Oct 11, 2010)

There are also ways to open a discussion other than a writ.


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## conarb (Oct 11, 2010)

There are also criminal laws against extortion.


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## JBI (Oct 11, 2010)

His actual mistake is representing himself. The DOJ is authorized to prosecute violations of ADA.


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## brudgers (Oct 11, 2010)

mtlogcabin said:
			
		

> Unless it is the only station in town he is free to patronize any other gas station he chooses and spend his money on a business that supports accessibility.


And free to sue those who don't.


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## brudgers (Oct 11, 2010)

JBI said:
			
		

> His actual mistake is representing himself. The DOJ is authorized to prosecute violations of ADA.


DOJ usually mediates and rarely imposes penalties.

In other words, there's no incentive towards compliance without private suits.


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## conarb (Oct 11, 2010)

Brudgears said:
			
		

> In other words, there's no incentive towards compliance without private suits.


And the government should incentivise extortion?


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## Rio (Oct 12, 2010)

The ADA act is one of the most horrible pieces of legislation ever passed by the congress.  If they really wanted to increase accessibility they would have made a provision to allow the business being sued to come into compliance before getting hammered by a lawsuit.  These lawsuits are oftentimes settled and the problem is never disclosed, much less remedied.


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## Coug Dad (Oct 12, 2010)

Accessibility features were required in the UBC even prior to the 1979 edition.  The two biggest issues were that the building departments were not uniformly enforcing the code and there was more money to be made by the attorneys in suing as opposed to working through the code change process to enhance the provisions


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## mtlogcabin (Oct 12, 2010)

> And free to sue those who don't.


But he can't personally gain from it in all fifty states like he can in Texas and California. That's my objection to the lawsuit.


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## brudgers (Oct 12, 2010)

mtlogcabin said:
			
		

> But he can't personally gain from it in all fifty states like he can in Texas and California. That's my objection to the lawsuit.


Without punitive damages, the time value of money creates an economic incentive for non-compliance.

Punitive damages are the only practical economic disincentive for non-compliance. In other words, it's the best of the two alternatives.


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## brudgers (Oct 12, 2010)

conarb said:
			
		

> And the government should incentivise extortion?


You're against free market solutions?


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## Alias (Oct 12, 2010)

mtlogcabin said:
			
		

> But he can't personally gain from it in all fifty states like he can in Texas and California. That's my objection to the lawsuit.


mtlogcabin -

Exactly.  I am opposed to the possible 'personal gain angle' that is involved.

CA has now added another layer of legislation requiring a Certified Accessibility Specialist in building departments due to the numerous (sometimes frivolous) lawsuits filed by repeat complaintants.  I wonder how many other times this guy has filed a lawsuit against a business?

Now, don't get me wrong, I don't disagree with the ADA accessiblility provisions but, if the building hasn't been remodeled, there isn't much I can do about it.  My response would be to meet the customer in an accessible location and assist them as much as possible in conducting their business.  It is known as *reasonable accommodation.   *As to the parking lot, that is the responsibility of the station owner.

Sue, in sunny chilly CA


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## brudgers (Oct 12, 2010)

Alias said:
			
		

> Exactly.  I am opposed to the possible 'personal gain angle' that is involved.


So am I.

That is to say that I am opposed to the personal financial gain made through non-compliance with accessibility requirements.


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## peach (Oct 16, 2010)

I'd like to know exactly what $25,000 actual damages occurred.


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## David Henderson (Nov 1, 2010)

I to am against personal gain, We have an attorney and a disabled person going around to the business, filing a lawsuit for non-compliance then settling for X amount of money with the promise to fix it in the future


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## brudgers (Nov 1, 2010)

David Henderson said:
			
		

> I to am against personal gain, We have an attorney and a disabled person going around to the business, filing a lawsuit for non-compliance then settling for X amount of money with the promise to fix it in the future


The business owner is experiencing personal gain through noncompliance.


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## Gene Boecker (Nov 12, 2010)

brudgers said:
			
		

> The business owner is experiencing personal gain through noncompliance.


Regardless, the attorney and cohort are without standing in most situations.  The federal appeals court has issued a statement that this individual is to cease these types of often frivolous suites or be cited for contempt of court.  The lawyer is simply seeking places to place lawsuits so he can settle the case for only a few tens of thousands of dollars (plus court fees, of course).  To defend a case, it often costs at least $60,000.  Taking a settlement of half that fills the pockets and keeps the lawyer out of trouble with the courts.  THAT is legal extortion.

Sure, if the owner intentionally deprives individuals of their right to access by discrimination - either active or constructed - then they deserve to be notified and pay for the costs associated with the corrective action necessary.  Usually, if you let someone know that there is a problem, they'll seek to fix it anyway.  For those without disabilities, it's often a surprise to know that this or that thing doesn't afford access.  Its a different language to them and they need educating.  If people discriminate, they should be informed of their mistake.  If they continue they should be punished.  But the little lawyer who is suing well intentioned people is practicing his own form of discrimination and it's socio-economically based.  People who can't afford to push back are the losers.  It's often cheaper to give in to corrupt practices than to fight for your position.

Now, I'll step off the soap box for the next person. . . .


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## brudgers (Nov 14, 2010)

Many businesses are seeing $10,000 or more in net revenue from non-compliance.

Because of the time value of money, in the absence of damages there is an economic incentive to delay compliance until forced to comply.

Some people are surprised that they need a building permit, doesn't mean they're not required.

As a matter of fact, many departments double fees for work without a permit as a disincentive.


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## conarb (Nov 14, 2010)

Brudgers said:
			
		

> Many businesses are seeing $10,000 or more in net revenue from non-compliance.


That doesn't make any sense, you are stating that businesses that don't comply obtain more profitable business than those that do?  I think you must mean that businesses that do comply spend so much money complying that based upon the time value of money they make $10,000 a year less than those that don't comply.  Increasing the costs for all for the benefit of a few has been turned aound into profiteering for a few.



			
				Wikipedia said:
			
		

> On signing the measure, George H. W. Bush said:  I know there may have been concerns that the ADA may be too vague  or too costly, or may lead endlessly to litigation. But I want to  reassure you right now that my administration and the United States  Congress have carefully crafted this Act. We've all been determined to  ensure that it gives flexibility, particularly in terms of the timetable  of implementation; and we've been committed to containing the costs  that may be incurred.... Let the shameful wall of exclusion finally come  tumbling down.¹


It appears that the concept of "flexibility" as well as cost containment has been lost to totalitarianism and profiteering.

¹ http://en.wikipedia.org/wiki/Americans_with_Disabilities_Act_of_1990


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## jar546 (Nov 15, 2010)

This one is easy for me.

I am in complete agreement with Brudgers on this one.  There is profit in both directions and no incentive to comply other than the threat of a lawsuit for damages in addition to the cost of compliance which they should have paid for anyway.

Kind of like the contractor who never pulls permits and knows he won't get fined or have the permit fee doubled.  His/her thinking is that if they get caught they will have to pay the permit fee that they were suppose to anyway.  In the interim, they are gambling that they will have a higher profit on the job.

How many business owners fight accessibility requirements during the plan review stage anyway.  Lots from my end.


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## RJJ (Nov 15, 2010)

In PA if someone alters an ADA requirement you need to notify them as the BCO. It is that last little section of your last audit. If they don't respond for correction file a complaint with L&I and place a copy in the file.


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## brudgers (Nov 15, 2010)

conarb said:
			
		

> That doesn't make any sense, you are stating that businesses that don't comply obtain more profitable business than those that do?  I think you must mean that businesses that do comply spend so much money complying that based upon the time value of money they make $10,000 a year less than those that don't comply.  Increasing the costs for all for the benefit of a few has been turned aound into profiteering for a few.


Now to understand ADA enforcement, imagine analogous enforcement for building permits.

When something is constructed without a permit, the AHJ has the right to go to Federal Court.

When using the Federal Court, the AHJ may recover attorney's fees, but not impose fines or liens, nor may they recover their administrative costs (such as the BO's salary and the building inspector's fee).

In the interim, the building is allowed to be fully occupied and the developer, contractor, and owners can continue to operate during the litigation.

At the conclusion of the successful suit, the AHJ doesn't collect any permit or inspection fees [to keep the analogy parallel to ADA enforcement] and the building owner is allowed a reasonable period to comply while continuing to operate.


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