Drive-by ADA lawsuit

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Drive-by ADA lawsuit

Postby td on Fri Jul 24, 2009 5:54 pm

I have just received notice (gotten served) that I have been sued in Federal District Court by a man I do not know, but wish I had known of. His name is Joseph Raetano and he is a self-styled disability activist. Eventhough he has never been in our store he assumed we are not ADA compliant ( and after reading the entire, often contradictory, requirements I am not sure that I am totally compliant). This man, and his attorney Todd W. Shulby, Esq. have made a cottage industry out of extorting money from small business owners. Don't believe me? google their names along with ADA. Since January of this year Mr. Raetano has sued over 70 businesses in the greater Clearwater area. You can read about him, and his attorney here http://www.sptimes.com/2008/02/11/Busin ... ssib.shtml

Here is how this scam works, even if you are compliant (and it is highly likely that you are deficient somewhere) you get sued using the identical lawsuit as your neighbor ( just like myself and the eye doctor next door). In order to prove compliance you must allow their expert (at your expense $180/hr) to inspect your premises you must then fix any problems and pay them to reinspect. Then they will agree to settle for the costs of the attorney ( at $290/hr) usually coming in at around $5000 or so (more if you let it actually go to litigation). If you don't settle you can hire your own lawyer and spend even more money, possibly paying them both in the end. By filing the lawsuit first they ensure that they will be paid. On the day after I was served, I received letters from a number of lawyers wanting to represent me (these would be ambulance chasers, of a sort). Perhaps they are cousins.

At the end of the day why do any of us ever get into the retail business (although this is not strictly a retail issue)? So much bullshit, so little time. The really sad part of this is that it actually works against the handicapped, causing hate and distrust. Congress created this mess in the way that they wrote this law, and Congress ensures that it continues by not fixing it. Not too mention the judges that allow lawyers to bill excessive hours for filing identical lawsuits. But, then again they are lawyers themselves. Why is it OK to sue first? Tying up the courts and costing, God only knows how much, money.

Let this be a cautionary tale to the rest of you out there, I used to think that stories like these were a little suspect. I also used to think that no lawyer would waste his time suing a small business for, relatively, small potatoes. But, I guess I was wrong.

So, I guess I'll end up paying my extortion money. And to think I wanted to be a lawyer once. Damn, I'm glad I chose a more honorable profession. But, then again what profession isn't more honorable than one that extorts money from small businesses by using people with disabilities.
-T.D. Davis
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Re: Drive-by ADA lawsuit

Postby Marshall on Fri Jul 24, 2009 9:09 pm

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Re: Drive-by ADA lawsuit

Postby td on Sat Jul 25, 2009 11:00 am

Marshall,
Thanks for the info. However, as you know most business owners do not wish to litigate. I count myself amongst them. If I fight this God only knows how much this could cost; not to mention the time and aggravation. What I fail to understand is why the Bar seems to reluctant to police their own profession? It is not like the Chambers of Commerce, lawyers, Federal District Judges, the state bar associations, U.S. Congressmen and U.S. Senators do not know that this is happening. They all know. Yet, all seem unwilling to take the proper actions to bring a halt to this type of litigation abuse. Actually, it is not litigation abuse, as it rarely reaches litigation, that is what makes it so much like extortion. "Pay me or something bad may happen to you"- words that could be uttered by a street gang member, a mobster, or an attorney looking for an easy pay day.

I just spent the entire morning reading the ADA Accessibility Guidelines:
http://www.access-board.gov/adaag/html/adaag.htm
And I am still unsure if I comply completely or not. So, Monday morning I have an architect that specializes in ADA doing an inspection of my place. And the bill climbs higher.

Also, some differences with the California incidence and ours here in Florida- the Plaintiff in our cases is not asking for damages just full compliance, and attorneys fees. I think our plaintiff just does it for the publicity. As we do not have a state law that allows for damages like California, and the Federal Law does not allow for damages. Another interesting thing is that they do not cite, or even mention the business, just the landlords (which happens to be me personally). I am sure this is because property owners are much more likely to pay, even if they force the individual business owners to fix issues inside of their spaces.
-T.D. Davis
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Re: Drive-by ADA lawsuit

Postby Marshall on Sat Jul 25, 2009 12:13 pm

If they have sued so many property owners in your community, it may be in your interests to work together and hire a single firm to fight this. One issue that should be looked at is whether an individual plaintiff has standing to sue businesses that he has never visited or planned to visit.
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Re: Drive-by ADA lawsuit

Postby seankohmescher on Mon Jul 27, 2009 4:58 pm

This happened in Sacramento for a couple of years. He won all the cases. Then I heard, he NOW has to get permission by the higher courts to sue anyone. Maybe Marshall knows of the man that I am talking about.

They do not go after the corporations, just the small businesses.
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Re: Drive-by ADA lawsuit

Postby Marshall on Mon Jul 27, 2009 5:16 pm

Yes. California has a "vexatious litigants" law, that puts such miscreants on a list and requires that they show good cause get special court permission before filing any new lawsuits. http://www.courtinfo.ca.gov/courtadmin/aoc/vexatious.htm

I don't know if Florida has such a law.
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Re: Drive-by ADA lawsuit

Postby Jeff Givens on Mon Jul 27, 2009 6:35 pm

Florida has a vexatious litigants law, but it only applies to people who pursue their cases themselves (pro se).
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Re: Drive-by ADA lawsuit

Postby Marshall on Mon Jul 27, 2009 7:11 pm

Jeff Givens wrote:Florida has a vexatious litigants law, but it only applies to people who pursue their cases themselves (pro se).

Same in California, on the theory that lawyers act as a screen, because they are subject to disciplinary proceedings for repeatedly bringing baseless lawsuits, as has happened here (see above).
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Re: Drive-by ADA lawsuit

Postby phaelon56 on Tue Jul 28, 2009 6:39 am

Marshall wrote:If they have sued so many property owners in your community, it may be in your interests to work together and hire a single firm to fight this. One issue that should be looked at is whether an individual plaintiff has standing to sue businesses that he has never visited or planned to visit.


Bingo.

And it is truly disheartening to see developments such as this. There's an abundance of competent, ethical and professional lawyers out there who provide us with valuable services in times of need. It takes just a few creeps like this to besmirch the overall reputation of a profession.
Owen O'Neill
Syracuse NY

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and
New York Central Coffee Roasters
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Re: Drive-by ADA lawsuit

Postby Robert Goble on Mon Aug 03, 2009 4:33 pm

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Re: Drive-by ADA lawsuit

Postby Marshall on Mon Aug 03, 2009 5:02 pm

O.K. Enough. I'm going to be the devil's advocate for a minute. No, I do not approve of lawyers or plaintiffs who are just out to extort a quick buck and have no interest in actually expanding access for the handicapped.

But, we are coming up on the 20th anniversary of the Americans with Disabilities Act. The word has been out for a long, long time. If you've ignored the handicapped access laws for 20 years, consider yourself lucky that no one sued you before or that you weren't cited for code violations.

If you leave a plate of honey on the window sill, don't be surprised if bears start coming around. The message is really pretty simple: handicapped compliance is not optional. It's like paying payroll tax. It's a cost of doing business. Comply, and you won't get sued.
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Re: Drive-by ADA lawsuit

Postby td on Tue Aug 04, 2009 1:35 pm

Marshall,
I agree in theory. The problem is in compliance in buildings that existed before the ADA accessibility guidelines. The Law states that up to 20% of your remodel build-out must be used to make you ADA compliant, but which 20%. In my case the city inspectors gave the OK for my ramp to protrude into the 5' accessibility area next to the Handi-cap parking space ( I believed that the direction and area of the protrusion would not interfere with access, and the inspector agreed at the time) because my parking lot has lot so much area due to road widening work, and is itself no longer in compliance due to where the building sits on the lot. Also, I had to build an additional bathroom because the original small bathroom had 3 load bearing walls. This bathroom put me well over my 20%, but I did it anyway. Finally, I have a bar that is 42" high, too high for access, but you can do this if you have accessible table seating in the same area, so the law states. It did not stop this jackass from suing me over the height issue.

This lawyer is so goddamned lazy that he did not even check the business licenses of the business and thereby cited the wrong codes on many things anyway. And 2 of the things he claimed were patently untrue ( no 3' access from seating to bathrooms, no 42'" area to maneuver into and out of seating area). And yet, it has already cost me $1,800 to take out and repour landing and new ramp, engineering, permitted, etc ... We are not even to the lawyers fees yet. When I am finished I will comply with ALL new construction laws, even though this building is 40 years old! and block construction to boot. This is not the way that this is supposed to work.

I am thinking about being real stupid and defending myself Pro Se just so I can be sure that when I get f*&%ed I least don't have to pay 2 lawyers. One thing I have already learned is that some lawyers cannot understand the meaning of words such as: or, and, if and existing- god only knows how many more complex words trip them up.
-T.D. Davis
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Re: Drive-by ADA lawsuit

Postby Brent on Tue Aug 04, 2009 8:18 pm

td wrote:I am thinking about being real stupid and defending myself Pro Se just so I can be sure that when I get f*&%ed I least don't have to pay 2 lawyers. One thing I have already learned is that some lawyers cannot understand the meaning of words such as: or, and, if and existing- god only knows how many more complex words trip them up.


So, not wanting to encourage or otherwise, what benefits would come of self defending and mocking the whole process from a publicity point of view - I would assume the customers you would pick up from that sort of publicity won't get concerned about details like accessibility :)

(or can you write the costs off to marketing, and send the guy a christmas card at the end!)
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Re: Drive-by ADA lawsuit

Postby td on Wed Aug 05, 2009 12:04 pm

Brent,
I am not really fighting the thing. I feel it is easier to do the construction, than to fight over what I do and do not have to do by law to comply. As they are suing for injunctive relief, i.e. the removal of all barriers, I decided to bite the bullet and ensure that my building complies with all new construction building codes so that there can be no interpretation as to whether I comply or not. I am doing all of this construction (I hope) within the 20 day response time required by the Federal Statutes. I am going to ask the court to dismiss the suit as moot, since we will be in full compliance. Where I am willing to fight is over the padding of the fees of the plaintiff's lawyer. Maybe...

As for making lemonade out of lemons... I do not know if I really want my name in the local paper fighting over the unfairness of the ADA to small businesses. That discussion could easily spin out of control and these guys are good at making themselves out to be crusaders for the handi-capped while making the offending property owners look like wheelchair tippers. Unlike some members of this forum I do not believe that any press is necessarily good press. I do think I may write a story in the trade press about my experience, not that helps business in anyway. Wait till you see the pictures, though! Jackhammers, concrete, paint, Oh!My!
-T.D. Davis
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Re: Drive-by ADA lawsuit

Postby Brent on Wed Aug 05, 2009 1:22 pm

td wrote:As for making lemonade out of lemons... I do not know if I really want my name in the local paper fighting over the unfairness of the ADA to small businesses. That discussion could easily spin out of control and these guys are good at making themselves out to be crusaders for the handi-capped while making the offending property owners look like wheelchair tippers. Unlike some members of this forum I do not believe that any press is necessarily good press. I do think I may write a story in the trade press about my experience, not that helps business in anyway. Wait till you see the pictures, though! Jackhammers, concrete, paint, Oh!My!


Agreed, if you try to spin publicity you definitely need to be doing it from high ground - ie, we have complied beyond our legal requirements, boy these nefarious suits hurt the small business community yada yada yada...

If you don't think you can pull it off, then the best advice is don't try :)

But if you can generate positive mileage, you may as well...

Good Luck!
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Re: Drive-by ADA lawsuit

Postby Marshall on Mon Aug 10, 2009 8:12 am

One solution to "drive-by" lawsuits:
The New Hampshire Supreme Court has upheld the extortion conviction of a lawyer who threatened to sue a Concord hair salon for charging women more money for haircuts than men or children.

Daniel Hynes is identified as a Manchester lawyer and a 2006 graduate of the Western New England College School of Law in a story published by the Concord Monitor in March last year. A jury convicted him of theft by extortion after deliberating for only 1 ½ hours. The story quoted Assistant Attorney General Elizabeth Baker, who said Hynes had sent letters to at least 19 salons in the state.

The conviction was based on a letter Hynes sent in December 2006 to Claudia’s Signature Salon accusing the shop of violating laws barring gender and age discrimination. The letter demanded $1,000 to avoid litigation and gave the salon owner 10 days to comply, according to the New Hampshire Supreme Court opinion (PDF) issued on Wednesday.

However, Hynes had never visited the salon and did not have a client complaining of discriminatory pricing. As a result, he did not have standing to pursue a claim under the state’s Consumer Protection Act, according to the court.

The salon owner’s husband complained to the attorney general, who sent an investigator posing as a business partner to settlement discussions. Hynes was arrested after agreeing to a $500 settlement.

From the Legal Ethics section of the current ABA Journal. http://www.abajournal.com/news/n.h._high_court_upholds_extortion_conviction_of_lawyer_who_threatened_salon
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