# Why an Arizona woman sued more than 30 hotels where she hadn’t stayed



## mark handler (Jul 17, 2016)

Why an Arizona woman sued more than 30 hotels where she hadn’t stayed
http://www.desertsun.com/story/mone...an-30-hotels-where-she-hadnt-stayed/86875122/

The Aloha Hotel in Palm Springs does not have a pool lift, a device to help disabled guests into the swimming pool.

Neither do a number of hotels across the Coachella Valley.

This is why 35 hotels – ranging from small properties of a few rooms like the Aloha to large resorts like the JW Marriott Desert Springs Resort – are facing Americans with Disabilities Act lawsuits claiming the properties are out of compliance with the landmark 1990 federal law that has helped to create public spaces, which are infinitely more accessible for the disabled now than decades ago.

Installing the lift, said Monalinda Verlengia, front desk agent at the Aloha, would require “major construction,” and result in a hardship for her small hotel, which was built in 1947. The electric upgrades and other infrastructure needed would soar well north of $30,000, she added.

“It’s a lot of red tape for one person that wants to spend $50 to get in the pool,” Verlengia said.

The lawsuit against the Aloha and the other 34 hotels was filed by Theresa Brooke, a disabled Arizona woman. Each lawsuit -- filed in April and May -- makes the same claim: the hotel lacks the proper pool lift. Each lawsuit requests that the hotels take the same set corrective measures to install one, as well as pay $8,500 in damages, plus legal fees to Brooke.

Read more Palm Springs area city news

Verlengia's attorney has filed a motion to dismiss the lawsuit. If that's not granted it's not entirely clear if she plans to take the issue to court, as the two sides have been involved in settlement negotiations according to emails Verlengia shared with The Desert Sun.

Verlengia maintains Brooke was not denied access to the Aloha’s pool, if only because she never stayed at the hotel. Peter Strojnik, Brooke’s attorney, claimed Brooke visited the hotel, "encountered the barrier," and decided not to stay, according to a June 30 email Strojnik sent to Jane A. Rheinheimer, Verlengia's attorney.

In this lawsuit, like most others, Brooke called the hotel to ask if a pool lift was available for each pool and Jacuzzi spa, according to the lawsuits. If the hotel official said one was not available, a representative for Brooke was dispatched to the hotel to verify the absence of the lift.

“The reason for ramps and lifts is because of people like my client suing businesses who put the dollar ahead of providing equal access,” wrote Strojnik, in an email. Strojnik did not agree to an interview, though noted a pool lift cost about $2,000. That fee does not include the cost of installation.

In the last week, Brooke has filed another 26 ADA lawsuits in the Riverside and Pasadena areas on the same issue.

Theresa Brooke, a disabled Arizona woman, has filed 35 lawsuits against hotels up and down the Coachella Valley alleging they lack the proper pool lifts to assist disabled guests into the water.
Officials with the hotel industry say ADA lawsuits like those filed by Brooke in the Coachella Valley amount to “extortion” enabled by unscrupulous lawyers.

“It’s not an illegal racket. But it’s a form of legal extortion, in the legal sense,” said Jim Abrams, former president and CEO of the California Hotel & Lodging Association, who now serves as legal adviser for the California Association of Boutique and Breakfast Inns.

“This is an epidemic, in California, and in many, many cases all claimants want is some quick money -- $4,000, $5,000, $10,000 – and don’t really ever care if anything’s ever made accessible,” he added.

Requiring that the business is made accessible is part of the settlement, Abrams said.

“But the person that files the lawsuit never goes back and checks, and doesn’t really care,” he said.

Brooke has filed more than 180 ADA lawsuits in California federal courts since August of last year. Most of those – 123 – were in the Central District, which includes the Coachella Valley. Brooke has also filed more than 150 ADA lawsuits in federal courts in Arizona.

Strojnik would not say if he or Brooke followed up with hotels to ensure compliance with the law. For this, and other questions, he said, “that’s confidential.”

“Epidemic” is not how disability advocates describe the ADA legal climate in California. Of the 3.3 million small businesses in the state the California Commission on Disability Access’ data reports that from January 2014 to January 2015 only 3,468 demand letters and complaints were filed. This means only 0.1 percent of businesses are sued about disability access. And out of the more than 3.7 million Californians with disabilities, only 391 people with disabilities, or .01 percent, filed access claims from January 2014 to January 2015, according to Disability Rights California, an advocacy group.

“Using the law, in that way, is an enforcement mechanism,” said Evelyn Abouhassan, senior legislative advocate for Disability Rights California, and who has worked on a lot of ADA-related legislation in Sacramento. Abouhassan spoke in defense of Brooke's lawsuits, though she was careful not to comment on any specific case.

“There is no other way to really ensure that businesses come into compliance,” she added. “And our experience has been that businesses have no incentive, other than – they take a wait-and-see approach – and then when they get sued is when they fix the access issues.”

And indeed, the U.S. Court of Appeals for the Ninth Circuit has written that “serial litigation” may be necessary in “advancing the time when public accommodations will be compliant with the ADA,” in the case Molski v. Evergreen Dynasty Corp.
Continued below


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## mark handler (Jul 17, 2016)

Continued from above
It’s important for everyone to realize, say those on both sides of the issue, that the ADA is a civil rights law, not a set of building codes. And it’s incumbent upon hotels and any business that serves the public to be accessible to all users.

“It’s not a building code law. It’s not a pool lift law. It’s really a law about providing full and equal access to people with disabilities,” echoed Martin Orlick, a San Francisco real estate attorney who has represented a number of businesses in ADA lawsuits.

“And I don’t think anyone quibbles with the spirit and the intent of the ADA. In fact, I think everyone supports it,” Orlick continued. “It’s when the ADA is abused by people who are primarily interested in raking in money, than they are of doing the Lord’s work of making properties accessible, that I think most people have trouble with.”

n Palm Springs, like in other communities, it’s up to each business to comply with the ADA, said Marcus Fuller, assistant city manager in Palm Springs.

“Nevertheless, whenever a hotel undertakes improvements that require permits from the city, the city will include in its review compliance with ADA regulations,” he added.

The law also includes some wiggle room. With regards to retrofitting hotel swimming pools, “there is no need to provide access to existing pools if doing so is not ‘readily achievable.’ Providing access is not readily achievable if it would involve significant difficulty or expense,” reads the 2010 revised requirements at ada.gov.

“So for example, if you don’t have enough room to install the lift… then you don’t have to install it,” Abrams said. “To prove that, it’s just not reasonable to do it, because you have to go to court, and you run up your own attorney’s fees, and if you lose you’ve got pay the other guy’s attorney’s fees.”

So, other than cost, why don’t hotels and other businesses ensure they are compliant with the ADA?

“Many of them think they are in compliance,” said Orlick, the ADA defense attorney. “They have grab-bars in the bathrooms. They have lowered mirrors. They have a higher toilet seat. But what they don’t realize is that there are so many technical requirements. There are over 100 technical requirements for a bathroom."

Some owners are not really aware they are out of compliance, he added.  “Others don’t really see any customers coming in in wheelchairs, and that may very well be because their place is not compliant; or it may simply be that this is a plaintiff that has gone out, looking for a lawsuit to file,” Orlick continued.

“It’s been 24 years since the first standards went into effect. I’m still amazed as I deal with this, and I ask people, ‘why haven’t you complied?’ ‘Well, I didn’t know about (it)’” said Abrams, from the California Association of Boutique and Breakfast Inns.

And don’t think it’s just older properties that are not always in compliance. Abouhassan, who is with Disability Rights California, and uses a wheelchair, said it’s not uncommon for new construction to be inaccessible.

“I’ve seen it, whether new or old,” she said.

“Sometimes the access issues can be simple. For example, you have an accessible bathroom, and I’ll go in to use the accessible stall, and for example they’ll put storage items in the accessible stall because it’s bigger,” Abouhassan said.

“Businesses need to educate themselves on what they should do to ensure compliance, so that people, like myself – people with disabilities -- who are entitled to access buildings and public places, like everybody else, are able to do that in a way that’s effective,” she added.

Back at the Aloha, Verlengia said she’s been offered $5,000 to settle the case. Which she says, she does not intend to do.

The Industry group Small Hotels of Palm Springs has hired a compliance consultant and attorney to assist with the cases filed against its members, said David Shahriari, president of SHoPS, and general manager for the Villa Royale Hotel, which is not one of the 35 lawsuits.

SHoPS wants to help its members get in full ADA compliance, “beyond pool lifts,” Shahriari said.

“That been said, it is very evident that most of these lawsuits are frivolous by sheer number of filling by same individual client and attorney,” he added in an email.
List of area hotels being sued

The Adriatic Villa – Palm Springs
Alcazar Palm Springs – Palm Springs 
Best Western – Indio 
Casa Larrea Inn – Palm Desert
Cimarron Golf Resort – Cathedral City 
Del Marcos Hotel – Palm Springs
Aloha Hotel – Palm Springs
Avalon Palm Springs – Palm Springs
Best Western Inn – Palm Springs
Calla Lilly Inn – Palm Springs
Colt’s Lodge – Palm Springs
Comfort Inn – Palm Springs
Courtyard by Marriott – Palm Desert
Doubletree by Hilton – Cathedral City
Holiday Inn Express – Palm Desert
Indian Wells Resort Hotel – Indian Wells
Indio Palms Country Club and Resort – Indio
International Hotel & Suites – Palm Desert
JW Marriott Desert Springs Resort & Spa – Palm Desert
Korakia Pensione – Palm Springs
Los Arboles Hotel – Palm Springs
Mauna Loa Motel – Indio
Monroe Palm Springs – Palm Springs
Oasis Resort -- Palm Springs
Palm Springs Hotel -- Palm Springs
Parker Palm Springs – Palm Springs
Posh Palm Springs – Palm Springs
Red Lion Inn & Suites – Cathedral City
Roadway Inn & Suites – Indio
Saguaro Palm Springs – Palm Springs
Shadow Mountain Resort & Club – Palm Desert
Skylark Hotel – Palm Springs
Sparrows Lodge – Palm Springs
Chateau at Lake La Quinta – La Quinta
The Village Palm Desert – Palm Desert


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## ADAguy (Jul 18, 2016)

As noted above, state authorized "bounty hunters"
Ignorance of the law is no excuse.


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## conarb (Jul 18, 2016)

ADAguy said:


> As noted above, state authorized "bounty hunters"
> Ignorance of the law is no excuse.


As I noted above, ignorance of the law is an excuse, the Justice Department requires intent to violate the law, every business sued should just go to court _in pro per _and plead ignorance of the law so there was no intent to violate the law.


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## ADAguy (Jul 18, 2016)

Rarely is it an acceptable excuse, Is failure to comply a "criminal act"? I think not.

*Background – Criminal Acts only*

_Ignorance or mistake can be raised as a defense to criminal charges._ Ignorance or mistake of the *law* will be a defense to a criminal charge only in limited circumstances. *The courts have rarely allowed the defense of ignorance of the law to succeed.*

However, *the courts have reasoned that the defense may be viable if the act in question is not obviously wrong.* The reasoning behind this is that criminal punishment might not be appropriate in such cases unless it can be proven that the defendant intentionally disobeyed the law.

*Ignorance or Mistake of Fact *

Generally, ignorance or mistake as to fact or law is a defense if:


The ignorance or mistake takes away the purpose, knowledge, belief, recklessness or negligence required to establish a material element of the offense; or


The law provides that the state of mind established by ignorance or mistake constitutes a defense.

The defense is not available if the defendant would have been guilty of another offense had the situation been as he thought. In such a case, the defendant can be found guilty of the offense that he would have been guilty of had the situation been as he supposed.

*Proving Ignorance or Mistake *

If the law that the defendant is charged with breaking states that ignorance or mistake is a defense, then all that needs to be proven is his ignorance or mistake. *If the law doesn't state that ignorance or mistake is a defense, then two things must be proven.*

First, the defendant's ignorance or mistake.

Second, due to the ignorance or mistake, he didn't have the required mental state to be guilty of the crime.

*There are a couple of common approaches that can be used when trying to prove ignorance or mistake of the law.*

One is that *the defendant had no personal knowledge of the law* and *the law was not made reasonably available to him prior to the conduct in question.*

The other approach is to prove that the defendant acted in reliance on an official statement of the law that was afterwards determined to be incorrect.


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## ADAguy (Jul 18, 2016)

Whoops, my bad, it is a criminal act, however:


*Ignorance or Mistake of Law *

 A belief that conduct doesn't break the law is a defense to a criminal charge when:

 The law defining the offense isn't known to the defendant and hasn't been published or made reasonably known to the defendant prior to the conduct in question; or

•The defendant acts in reasonable reliance on an official statement of the law that is afterwards determined to be invalid or wrong.

 When the defense is based on an official statement of the law, the statement in question must be contained in an actual written law, a judicial decision, an administrative order or an official interpretation of law by someone who is responsible for interpreting the law. The defense of ignorance or mistake of law must be proved by a preponderance of the evidence.










The law defining the offense isn't known to the defendant and hasn't been published or made reasonably known to the defendant prior to the conduct in question; or

•The defendant acts in reasonable reliance on an official statement of the law that is afterwards determined to be invalid or wrong.



When the defense is based on an official statement of the law, the statement in question must be contained in an actual written law, a judicial decision, an administrative order or an official interpretation of law by someone who is responsible for interpreting the law. The defense of ignorance or mistake of law must be proved by a preponderance of the evidence.


*Ignorance or Mistake of Law *



A belief that conduct doesn't break the law is a defense to a criminal charge when:











The law defining the offense isn't known to the defendant and hasn't been published or made reasonably known to the defendant prior to the conduct in question; or

•The defendant acts in reasonable reliance on an official statement of the law that is afterwards determined to be invalid or wrong.



When the defense is based on an official statement of the law, the statement in question must be contained in an actual written law, a judicial decision, an administrative order or an official interpretation of law by someone who is responsible for interpreting the law. The defense of ignorance or mistake of law must be proved by a preponderance of the evidence.


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## steveray (Jul 18, 2016)

Methinks our good buddy Conarb is referring to Hillary....


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## conarb (Jul 18, 2016)

steveray said:


> Methinks our good buddy Conarb is referring to Hillary....


Of course, first a violation of ADA is not a criminal act but an administrative violation, if the DOJ that wrote the ADA regulations refuses to prosecute Hillary for committing several criminal acts, as laid out by the FBI, they certainly won't be prosecuting any administrative regulatory violations, especially those they wrote themselves.  

One might contend that the Attorney General's decision does not set a legal precedent like a higher court; however, Attorneys General Opinions are frequently cited in legal cases, go into any law library and ask the librarian to show you the Attorneys General Opinions, you will see bookshelves full of them.  

Hell, *kids have written a smart phone app* to help people get off on parking tickets, we could do the same and write a smart phone app to help people get off ADA violations.


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## ADAguy (Jul 18, 2016)

Hair splitting are we? 

ADA is a Civil Rights "Law".

clarify what you mean by "administrative" violation, violation of "what" exactly? 

DOJ has and continues to file & proscecute ADA violations.


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## conarb (Jul 19, 2016)

ADAguy said:


> Hair splitting are we?
> 
> ADA is a Civil Rights "Law".
> 
> ...


We have three kinds of laws (not counting some others like Labor Laws), Civil Law, Criminal Law, and Administrative Regulations.  Regulations are the lowest level since they are not laws passed by legislators elected by the people, but they are written by lower level Civil Servants employed by the regulating agency to interpret laws written by legislators, regulations can change at the whim of the regulating agency, in this case let's say Trump is elected, the first thing all administrative agency heads do is tender their resignations to the new administration, when Loretta Lynch tenders her resignation Trump will accept it and appoint a new Attorney General, that Attorney General can fire everybody in the DOJ, hire all new people, and write all new regulations.  

We saw this happen in California, Gray Davis (a Democrat) was governor and appointed the members of the Building Standards Commission, Building Standards elected to get rid of the ICC Codes and adopt the NFRC 5000 Building Code under all kinds of bribery allegations, Governor Davis was recalled and Governor Schwarzenegger (a Republican) was elected, the members of Building Standards tendered their resignations, Schwarzenegger accept them and appointed a new Building Standards Commission, they held an immediate meeting and rescinded the adoption of the NFRC 5000 and readopted the ICC Codes.  This worked as it should, the only thing that I didn't like was all bribery allegations against the former members and the NFRC were dropped, I would have liked to have seen the former members prosecuted and the NFRC exposed as the corrupt organization that it is.  

If you still can't seem to understand, Congress passed the rather vague ADA law, that law said nothing about the height of mirrors or the number of Handicapped spaces for example, the DOJ wrote all those regulations you guys enforce, a new President can't change the basic law, but he can (and will) appoint a new Attorney General who can change or eliminate all the prior DOJ's regulations.  As far as I, and many attorneys are concerned, the whole game changed when Loretta Lynch accepted Director Comey's requirement of "intent" to prosecute.


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## JBI (Jul 19, 2016)

I actually agree with conarb (mark this date for historical reference, LOL). 
Violations of the ADA are not 'criminal' acts. They violate 'civil rights'. Some violations of law can be both criminal AND civil (as in OJ Simpson, who was accused of a criminal act and found not guilty, but later convicted in a civil trial. Different burden of proof, different result).  
Code Officials can only enforce adopted Codes. The DOJ is charged with enforcing the ADA. 
So a small hotel built in 1947 had no requirement to meet regarding accessibility at original construction, but... some parts of the ADA are retroactive, so the hotel fell out of compliance after adoption. 
The ADA looks at what is 'reasonable' (and again conarb raises valid points). A new administration could yield harsher or more lenient decisions (since Trump has famously mocked the disabled, I'm inclined to believe the latter is more likely should he win). 
I'm no expert on the case law, but cannot recall anyone convicted of violating the ADA being sent to prison for it, only forced to pay damages and come into compliance. 
_ “It’s when the ADA is abused by people who are primarily interested in raking in money, than they are of doing the Lord’s work of making properties accessible, that I think most people have trouble with.” _
That quote from the OP is most salient for me.


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## ADAguy (Jul 19, 2016)

regulations can change at the whim of the regulating agency,

Actually they can't. The regulating agency may not add to or expand upon the legislative language of the law. The regs can only reflect the intent of the legislative language of the law (intent is a debatable term).
We tried with the CASp program law which lacked sufficient verbage to empower the state architect to draft program regulations and guidelines with teeth.

Note, CASp law is still titled "Voluntary" Certified Access Specialist Program. Only by revision to the law can the title be altered to delete "Voluntary" (making it mandatory?) and yet a recent change to the law "requires" building departments to utilize the  services of "Voluntary" CASps.   

It seems to come down to "He who has the gold" is in a position to enrich the pockets of attorneys by challenging the law of not. Would it not be better for business to band together and file a class action seeking to correct/modify the law if you believe it and its regulations to be unjust?


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## Mark K (Jul 19, 2016)

I seem to recall that in California violation of building standards (i.e. the building code) can be considered a misdemeanor.  Thus when you violate the building code provisions that incorporate the ADA provisions you could be guilty of a misdemeanor.


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## conarb (Jul 19, 2016)

ADAguy said:
			
		

> Actually they can't. The regulating agency may not add to or expand upon the legislative language of the law. The regs can only reflect the intent of the legislative language of the law (intent is a debatable term).



That is absolutely correct, I guess you do get it.  Regs are only supposed to interpret the law, the problem the regulatory agencies are political and go way beyond interpreting the law, try fining anything in the ADA law about mirror heights, number of parking spaces, etc., it's all in the political regulations.  

BTW, I have some news that should make you happy, remember when I said Civil Rights laws were limited to 12 more years?  In the latest Fisher case the supreme Court has extended it indefinably, unless another supreme court decision changes that. 

To review, the Civil Rights Act on 1964 is totally unconstitutional, the 14th Amendment requires everybody be treated equally, no special privileges for minorities, women, or others, Justice Brennen ruled that extending special privileges to blacks was in pursuit of a "compelling interest" to end racism.  In the famous 1968 _Bakke _case quotas were ruled unconstitutional but race could be taken into consideration in admissions, the court gave Civil Rights 8 more years, quotas were replaced by affirmative action.  In the 2003 _Grutter _case Justice O'Connor gave it 25 more years and that was my basis in telling you that unconstitutional Civil Rights law was going to end in 2028. 



			
				Chronicle said:
			
		

> In her majority opinion in the Grutter case, Justice O'Connor wrote: "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today." That sentence was widely regarded as a prediction that the Supreme Court would be less willing to give its blessing to race-conscious admissions policies a quarter century down the road, and as giving the nation's educational institutions an informal deadline for finding alternatives to race-conscious admissions policies and closing race-linked gaps in educational achievement.
> 
> In a speech delivered in 2007, a year after her retirement, Justice O'Connor herself had said the Grutter majority "had tried to be careful in stressing that affirmative action should be a temporary bandage rather than a permanent cure.¹



In the recent Fisher case out of Texas Justice Kennedy seemed to extend it indefinitely by stating that diversity itself was a benefit to all and does not treat certain individuals preferentially, that tells me that unless overruled diversity will be with us forever. 



			
				U.S. News said:
			
		

> First, facts mattered. The Fisher II court rejected affirmative action "truthiness": the false equivalence of race-sensitive holistic admissions systems with mandatory racial quotas. After interrogating how the university's policy actually worked, the Fisher II majority found that race played a modest role in it. Texas admitted or rejected many blacks, Hispanics, whites and Asians for reasons having nothing to do with race. Furthermore, on occasions when officials did take race into account, race, alone, did not determine admission outcomes. Moreover, the record showed that under Texas' holistic system, whites and Asians could benefit from consideration of race. Overall, the university's system looked like a good-faith attempt at inclusion. (A state law mandating admission of most University of Texas freshmen based on class rank, which had yielded greater student body diversity, did not preclude the school's limited consideration of race in holistic admissions, the court held).²



The court's logic here is that giving special privileges to one or more groups isn't discriminatory since all people benefit from being with a diverse group of people. Of course Civil Rights law was originally intended by LBJ to give blacks special privileges to buy their votes for the Democratic Party, but other activist groups screamed "Me Too" and feminists, homosexuals, and others jumped on the bandwagon, in 1990 Bush I added the handicapped, so unless another supreme Court rules otherwise it looks like we are stuck with giving special privileges to all inferior groups indefinitely.

The most unfortunate consequence of this is that morons, imbeciles, etc. are now protected by the ADA, a teacher I know quit her job because she had morons in the classroom, they have to have another special teacher in the classroom to cater to the needs of low IQ child.  


¹ http://chronicle.com/article/Sandra-Day-OConnor-Revisits/63523

² http://www.usnews.com/opinion/artic...ecision-shows-evolution-on-affirmative-action


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## ADAguy (Jul 19, 2016)

Expectations though optimistic don't always pan out in this ever changing world.


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