# Lawsuits over ADA compliance: Valiant campaign or small-business harassment?



## mark handler (May 22, 2011)

May 22, 2011 - 12:00am

By Roger Bull

Chris Fowler didn't know what the letters from the lawyers were even about. But he got four of them Friday afternoon, from attorneys as far away as Boca Raton, offering to defend him and the business he owns with this mother, Westside Automotive, in a lawsuit.

He didn't know he was being sued. But he's not alone.

Donna Smith, manager of Gorgi's 2 BBQ on Cassat Avenue, got her notice in the mail on Thursday.

Woody's Bar-B-Q, Lubi's Hot Subs, Pier One, Visionworks ... what they all have in common is that they've been the subject of lawsuits filed by one man.

Since early last year, Norman Hoewischer has filed 71 federal lawsuits against Jacksonville businesses alleging violations of the Americans with Disabilities Act. A dozen were filed last Monday alone.

The defendants are stores, restaurants, shopping centers, even automotive repair shops.

Each of the suits is similar. They all allege that Hoewischer, who uses a wheelchair, attempted but was prevented from fully using the facility. They further describe him as a "tester on behalf of himself and other persons with disabilities."

The complaints always have a list of purported violations, from the parking spaces out front to the toilet paper dispensers in the restrooms.

Sometimes the complaints are specific enough to deal in fractions of inches; other times they simply say "There are tables that are inaccessible."

Fowler said he was particularly surprised to be sued since he had spent a lot of money upgrading the business to meet what he thought were all the ADA standards.

The lawsuits don't ask for damages. Under federal law, the plaintiff is prevented from seeking monetary damages unless there has been actual injury.

But for a business, it can mean thousands of dollars in legal fees as well as repairs. And the settlement usually means the defendant pays the plaintiff's legal fees, which can run $10,000 or more.

Jack Gillrup, who retired as chief of Jacksonville's Disabled Services Division but is still an ADA consultant, said he has mixed feelings about these kinds of lawsuits.

"The dichotomy," said Gillrup, who uses a wheelchair, "is that he is making a difference for the good, he's getting businesses to be more aware. But he's also giving people with disabilities a bad name.

"For some of these small businesses, it's almost ruinous. Lawyers charge up to $10,000 and haven't done a thing but file cookie-cutter lawsuits. It's a gambit that's making somebody money hand over fist, and it shouldn't work that way."

Some lawyers aren't so sure about that.

"It all depends on who you ask," said Jeb Branham, who defended Lubi's on University Avenue against a Hoewischer lawsuit. "I think the business owners think it's a shakedown. I haven't met Hoewischer, but his attorney said he just wants to get the problems fixed."

William Henry Andrews, who represented the landlord in a Hoewischer lawsuit against Visionworks on Blanding Boulevard, said plaintiffs in cases like this often concentrate on one street, one neighborhood at a time. And, in fact, half of those sued Monday are on a short stretch of Cassat Avenue: Gorgi's, Award Shoppe, S&K Muffler, First Coast Auto Finance and JC's Fresh Seafood.

No warning

Gillrup and others said part of the problem is that there is no prior complaint about potential problems. The first word the business owner gets is a lawsuit.

"It seems to me that if their main interest was getting things fixed, they'd write a letter first and give the owner a chance to correct it," Andrews said. "I think most reasonable minds would think that."

The Times-Union did reach Hoewischer, who lives off Crystal Springs Road. But he would not discuss the lawsuits and instead referred all questions to Todd W. Shulby, a Fort Lauderdale attorney who has represented Hoewischer on dozens of suits.

Shulby, who has filed hundreds of ADA lawsuits for other plaintiffs as well, did not return several Times-Union phone calls over several days.

But Thomas Bacon, an attorney from Cooper City, defended the lawsuits.

"People have written letters until they're blue in the face, and the reality is that it never works," said Bacon, who represented Hoewischer in several cases, including those against Woody's Bar-B-Q on Powers Avenue and Popeye's Chicken and Biscuits on San Jose Boulevard.

"The only recourse these people have is the lawsuits," Bacon said. "And, frankly, I don't know if defense lawyers and defendants really believe that they would have brought themselves into compliance. I think it's disingenuous."

VIOLATIONS

Most of Hoewischer's lawsuits, no matter which attorney filed them for him, have page after page that are identical. They give the background of the law, say that he tried to visit the facility but was unable to have full access, etc.

But each also includes a list of alleged violations. Bacon said that with his cases, he doesn't take the plaintiff's word for it, but also sends out an investigator who takes photos of issues in question.

The suit against Hardee's on Blanding Boulevard, which was among the dozen Shulby filed Monday, lists 18, some as specific as "the toilet paper dispenser is too high and obstructs the side grab bar."

Fowler only has a dozen listed in the suit against Westside Automotive, the repair shop his grandfather opened 42 years ago. He looked over the list and acknowledged that he didn't have a blue parking curb out front, a wheelchair could not fit under the restroom sinks and there was no grab bar next to the toilet.

But the lawsuit also claimed the restrooms were inaccessible when the surface is flat and unobstructed all the way to the 36-inch-wide doors.

"I'm the last guy in the world who should be sued," he said. "I can give you the names of half a dozen handicapped customers who have been coming here for 20 years."

He also checked his files and said that Hoewischer had never been a customer there.

Businesses that are sued under the ADA usually hire their own consultants like Gillrup to see what needs to be done.

"Some of the allegations in the complaints are totally bogus," Gillrup said. "We went to one place last week where they'd alleged that there needed to be a counter 36 inches so that someone in a wheelchair could make change. They were right about some things, but the counter was right there. They couldn't have missed it if they were there."

THE COST

Bacon said that at least 90 percent of his cases are settled in the plaintiff's favor. The defendants agree to fix some, but often not all, of the issues raised in the suit.

"In most of these cases, there is virtually no litigation. But there are some things to fix, especially in these older facilities," said Guy Farmer, a Jacksonville attorney who represented the landlord in a Hoewischer suit against Pier One on Blanding Boulevard. "They don't have to fix everything, the law is more reasonable than that."

The work, he said, can cost anywhere from $500 to $500,000. But it usually includes the plaintiff's legal fees, which prompted U.S. District Judge Gregory Presnell of Orlando to once write in a ruling: "The current ADA lawsuit binge is, therefore, essentially driven by economics - that is the economics of attorney's fees."

And Farmer agreed.

"I do believe that it has become a bit of an industry for some attorneys," he said.

Bacon disagreed, noting that when Congress passed the law it didn't award any damages to the plaintiff or mandate that local code enforce it.

"So who's going to enforce it? Maybe these defense attorneys who complain about it could take these cases pro bono so they can sleep better at night," he said.

"We try to make these a no-hard-feelings case," Bacon said. "We're not accusing the defendants of wrongdoing or malice or prejudice. But it's simply that nobody enforces these laws except people like Mr. Hoewischer."

Roger Bull: (904) 359-4296

Read more at Jacksonville.com: http://jacksonville.com/business/2011-05-22/story/lawsuits-over-ada-compliance-valiant-campaign-or-small-business-harassment#ixzz1N5UATK4e


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## Papio Bldg Dept (May 23, 2011)

I think Farmer and Bacon both bring up important and valid points in this discussion.  Most small business owners are either unaware, or feign ignorance, to the ADA & ABA requirements.  I can't count how many times I have requested compliance on a plan review only to get back a story about how their neighbor or similar business isn't complying either, or that it is cost prohibitive, even at 20%.

At the heart of it, is whether or not the legal system is really our only valid arm of enforcement for such cases.  The irony of it all is that the legal fees are usually more than the renovation costs for barrier compliance.  I would suspect that Mr. Bacon, esquire, does not do pro-bono work for Mr. Hoewischer when cases do not go to trial, and yet has little, to no, trouble sleeping at night.

I am suprised that there is not a 'legal dot com' out there that hasn't already quick formed a lawsuit.


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## brudgers (May 23, 2011)

I have no sympathy for business owners who have previously profited from non-compliance and then start whining when someone sues them for discriminating.

I've been involved in enough renovations to know that non-compliance is so often willful that they deserve what they get.


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## conarb (May 23, 2011)

As long as we have "green architects" building their offices to LEED Platinum without bothering to to comply with ADA what hope is there that they will design to comply with ADA for others? Apparently Green trumps ADA. (Scroll the pictures to the right to see the plans)


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## fatboy (May 23, 2011)

OT, but I guess green gets you past code requirements also? Guard (lack of) on the stair/landing to the study? But hey, it's prettier that way........


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## steveray (May 24, 2011)

Nice Call FB!


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## Papio Bldg Dept (May 24, 2011)

conarb said:
			
		

> As long as we have "green architects" building their offices to LEED Platinum without bothering to to comply with ADA what hope is there that they will design to comply with ADA for others? Apparently Green trumps ADA. (Scroll the pictures to the right to see the plans)


Are the IEBC scoping sections met?

Visible ADA issues?

-Exterior grade does not provided accessible entrance.

-Entry Lobby does not provide adequate access to business area.  A lift or ramp could have been provided if head heights were available.  Is structural infeasability an issue?  Is there enough space (see section)?

-Several doors and restrooms do not meet clear floor space requirements.

The four steps and platform, as fatboy noted, are located in the residential occupancy, in which case, GREEN also trumps IRC.


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## Big Mac (May 24, 2011)

I have real mixed emotions about this issue.  On the one hand I see that some small business owners are going to struggle with trying to provide complete compliance, particularly in older buildings that were constructed long before accessibility became an issue.  However, on the other hand, I regularly get calls from tenants and the general public about accessible parking spaces that have been illiminated, and other barrier that have been placed on buildings that are much more recently built where the owners should be well aware that they are required to maintain all accessible features.  I also constantly have conflicts with "design professionals" where they go to extremes to try and avoid providing compliance with the accessiblity codes.  Wwith these folks I have very little patience.


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## fatboy (May 24, 2011)

If in 20+ years, a business has not made significant changes to attempt to comply with the standards, I too have little sympathy for them in a lawsuit. If there is an issue that is technically unfeasable, then let it be argued out.

And yes, even currently in new construction, DP's and GC's regularly go through the gyrations of "why me, not fair, too expensive", it grows tiresome.


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## mtlogcabin (May 24, 2011)

I believe the building owners should be 100% on the hook not the business owners. Most small businesses come and go within a year. A building owner could have had 20 different tenants since ADA and they need to be responsible to have a compliant building to rent. Similar to a slum landlord we don't go after the tenant to make the repairs we go after the property owner and that is the way the ADA should be enforced.


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## fatboy (May 24, 2011)

I agree with what you are saying, but a business owner (leasor) should also be aware of accessibility requirements prior to starting a business or leasing a space. I think we all agree, it is not a new concept. But, there will always be a new tenant, that will take the space as-is......round and round we go, glad it is not my battle, other than Chapter 11 and A117.1. on permitted construction.


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## peach (May 24, 2011)

sounds like a professional litigator filing suit.

ADA isn't ours to enforce; it's DOJ.


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## hlfireinspector (May 24, 2011)

Commerical use on 1st floor / Residental use on 2nd floor. Where are the sprinklers?


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## fatboy (May 25, 2011)

Must be in storage with the guard system.........


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## Architect1281 (May 25, 2011)

I always let the person asking what we enforce CH 11 and 117.1 that these are the building code requirements enforced by building inspectors.

then when they ask who enforces the ADA I reespond Lawyers.

This came up yesterday on a phone call with a landlord suggesting that as he cut an ever smaller unit that would not have access to a restroom

within an existing strip store why he had to put in an accessible restroom when ALL THE OTHERS in the building were not accessible and the local inspector was being mean.

told him new work > new code > new permit > new requirements by new building code.

Well what about all the old ones, told him lawyers needed something to do and when someone complains his would too!

Some think it a Cottage Industry, but I think it more of a Penthouse Industry!

Dear Penthouse you won't beleive this! The other day my wife was rolling into the nail salon..........

Yellow Flag Red Flagg 15 yards I know...........


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