ADA suits challenge Ybor businesses

As the country marks the 20th anniversary of the Americans with Disabilities Act, some Ybor City business owners fear that the landmark law could devastate the historical community.

The ADA has been credited with removing barriers for millions of disabled people, allowing them access to jobs and public buildings.

But some small-business owners see a dark side of the law - the threat of financial ruin.

Unaware they had any violations and insisting they don't want to discriminate, the business owners say they are served with lawsuits and pressured into settling for thousands of dollars without being given a chance to fix problems.

Vince Pardo, manager of the Ybor City Development Corp., said the plaintiffs tell business owners the same thing: Pay me $15,000 and we're out of your hair.

"That's a settlement," Pardo said.

When Congress enacted the ADA, it didn't assign regulators to enforce the law. Instead, it allowed individuals to sue and their attorneys to seek fees, breeding what one federal judge described as a cottage industry, "an explosion of private ADA litigation."

Ybor City restaurants and cigar stores are among the latest targets of lawsuits filed by Kendrick Duldulao, a doctor in the spinal cord injury center at James A. Haley Veterans' Hospital.

Duldulao, who uses a wheelchair, has teamed with a South Florida lawyer to paper Tampa businesses with lawsuits alleging violations ranging from inadequate handicapped parking and narrow doors to bars and counters that are too high.

The lawsuits have been served on Tampa landmarks such as the Mons Venus strip club and Bern's Steak House, as well as convenience stores and take-out Chinese and pizza places.

Duldulao and attorney B. Bradley Weitz have filed 29 ADA lawsuits since November. Nationwide, more than 1,900 ADA lawsuits were filed last year against businesses by nonemployees, an increase of 54 percent in two years.

In the Middle District of Florida, which includes Tampa, the number of cases nearly tripled in three years, going from 55 in 2007 to 156 last year. A Pinellas County man, A. Joseph Raetano, and his Broward County attorney have filed more than 200 ADA lawsuits since 2007.

"We call them drive-by lawsuits, quite honestly, because we're not convinced they're making the community more inclusive regarding the ADA," said Brenda Ruehl, executive director of Self Reliance Inc., a Tampa-based, nonprofit center for independent living.

Self Reliance refers businesses to certified experts for help complying with the law.

"If it comes to our attention a business is not complying with ADA, we work with that business," Ruehl said. "We have found that is much more productive and encourages people to want to buy into the ADA."

In cases when a business refuses to make changes, she said, the center works with the U.S. Department of Justice to pursue legal remedies.

Duldulao and Weitz did not respond to requests for comment.

Raetano said business owners know they need to comply with the ADA. He said he has tried to work with some business owners before filing suit, but often they don't want to listen.

"They get plenty of notice by these newspaper reports, these TV reports," he said. "If they aren't doing anything, then shame on them."

Raetano "thinks of himself as Superman in a wheelchair" working "for the good of people who don't have voices," said his stepson, Mike Fabiano.

"He didn't make the rules," Fabiano said. "He's just trying to get everybody else to abide by them."

Ignorance no excuse

Randy Levin said the first time he learned about possible ADA violations at his Elmer's Sports Cafe on Seventh Avenue was when Duldulao sued him.

Levin said he renovated in 1993 and complied with code. He had a ramp leading to an elevated section of the bar and a grab bar inside a handicapped-access bathroom stall. He said he didn't know he needed two grab bars and that his condom machine was too high.

Like the bulk of business owners in similar situations, Levin settled the case for an undisclosed amount and agreed to change his establishment.

He didn't want to settle.

"It makes me sick that I had to do it," he said. "I couldn't take the risk of going to court and losing."

Pedro Perez, owner of Metropolitan Cigars across the street from Elmer's, was sued but hasn't settled. Instead, Perez got friends to help him make changes, including lowering the shop's counter and putting up signs pointing out the handicapped-access door and advising patrons with disabilities they would be assisted upon request.

"I just want it to end," Perez said of the litigation. "I can't see wanting to pay this money."

Pardo, Ybor City's redevelopment director, said the lawsuits are rippling through the business community, creating fear among those who haven't been sued.

"I think it's a threat to the individual businesses that make up Ybor City," he said.

His organization is considering hiring experts to evaluate Ybor businesses and inform them of needed corrections.

Bradley Areheart, a professor at Stetson University College of Law, has little sympathy for business owners who claim they were caught off-guard by lawsuits.

"When it comes to the law, ignorance is no excuse," he said. "Businesses deserve no special invitation to comply with a statute that was passed by Congress and signed into law by the president over 20 years ago."

Areheart defended the private lawsuits as vital to enforcing the ADA, partly because Justice Department and Equal Employment Opportunity Commission lawsuits have been scarce.

"For the ADA to ultimately provide equal access for people with disabilities," he said, "it may well be desirable for committed individuals to bring serial litigation, where public accommodations have failed to comply with the ADA."

But West Palm Beach lawyer Joe Fields, who has defended more than 100 businesses from ADA lawsuits, said the suits are designed only to rake in money for plaintiffs' attorneys.

Cases often are dismissed "with prejudice" in settlements, he said, meaning the court doesn't have any oversight to ensure changes are made to buildings.

"As soon as the check clears on the attorneys fees, they have no interest in following up," Fields said.

'Vehicles for legal fees'

The Metropolitan Cigars lawsuit and at least two other Duldulao cases are being heard by U.S. District Judge James Moody, who has taken the unusual step of requiring the plaintiff to answer a list of questions, such as how often he visits the establishments and what barriers he encountered.

Moody also is requiring Duldulao to provide the court with copies of any notes he took when he visited the businesses.

Tampa lawyer Thomas M. Gonzalez, who represents Metropolitan Cigars, said the judge's questions show that the "courts are keenly aware of the burden they're under" because of the volume of such lawsuits.

"Anything that prohibits discrimination is a good law," Gonzalez said. But he questioned whether the lawsuits are "honest attempts" to make public buildings accessible.

"I think that the courts see these litigations as benefitting nobody but the lawyers," he said. "Basically they're vehicles for legal fees."

U.S. District Judge Anne C. Conway in Orlando said in a ruling that the situation "cries out for a legislative solution. ... Instead of promoting 'conciliation and voluntary compliance' the existing law encourages massive litigation."

Ten years ago, Fields testified before Congress in support of an amendment requiring that businesses be given notice of ADA violations and time to fix them before a lawsuit was filed. The amendment never passed.

Areheart said a notice requirement would undermine the law.

"Minorities and women barred from public accommodations have never been required to send a letter in advance of suing them," he said. "Why should the requirements for people with disabilities be any different?"