Several small business owners in one South Florida community Called Christina for help after they say they were hit with carbon copy lawsuits.
The suits allege Auto Spritz, International Auto Repair and Rothe’s Auto Repair, all located in Oakland Park, are in violation of the American with Disabilities Act or ADA.
They were all filed by Mark D. Cohen, a Hollywood, Florida-based attorney representing the same client.
All the business owners and managers told Local 10 News they don’t think they have ever met the plaintiff, Tal Hilson. In the suits it says that he “personally” visited the locations.
“No, I don’t think he even came to our business. I really don’t,” said business owner Beverly Shaffner.
“We call this drive-by litigation,” explained the attorney representing the businesses, Ken Minerley.
As Local 10 News investigative reporter Christina Vazquez began to investigate, she uncovered Florida businesses have been facing a surge of ADA suits in recent years.
While critics call them “predatory," others argue with the ADA on the books for decades, businesses should know to be in compliance.
Tal Hilson declined comment.
Mark D. Cohen sent us a written statement that reads in part, “The property owner is provided with a reasonable amount of time to bring the property into conformity with ADA standards…The bottom line is that in all three instances, the property owner is or will be ADA – Compliant. This is exactly how the ADA is/was intended to operate.”
Auto Spritz:
“I was in shock, I feared we were going to lose our shirts,” said Beverly Shaffner of Auto Spritz. “Had we known what we needed to do, I would have done it in the first place.”
International Auto Repair:
Jeff Garnett, a manager at International Auto Parts who is handicapped himself, said they made the necessary changes which included a marked handicap spot in the back of the business and a sign at the front entrance indicating the handicapped parking spot was available.
“We found a guy to go ahead and put the stripes and all the types of things we needed to do,” explained Garnett.
He wondered if compliance is what Hilson was seeking, why slap a business with a lawsuit asking for attorney fees, expenses and costs. Why not just contact the company first?
“He said he personally visited – nope – nope – somebody would have known there is not a person in here that would deny anyone, anything. There is no one who ever struggled with that door and we know it. It just wouldn’t happen; no one would let it happen,” stated Garnett, “because I myself was at one point in a wheelchair. If someone was out there in a wheelchair having difficulty there would have been two – three people running out there to help him get in here. If the guy was truly denied access in here or service in here I would fire the employee that ever created that situation. They are out just trying to take the money of the people.”
Rothe's Auto Repair:
In the case of Rothe’s Auto Repair, some of the language describing the property in the suit didn’t match what we saw once we visited the business.
“It doesn’t apply, doesn’t make any sense,” stated Staropoli, “It would have been nice to notify us, talk to us about it, if he really was a customer. We would do whatever it takes to accommodate him for sure.”
Staropoli, who said he felt “blind-sided” by the suit added, “It’s a scam, someone just looking for money, trying to exploit small business owners.”
Florida Second In Nation:
“There are going to be a few of these situations where businesses’ are going to feel they are under attack,” explained Minh Vu, a partner at Seyfarth Shaw.
WEB EXTRA: Minh Vu on ADA suits
She has been tracking a surge of ADA lawsuits nationwide.
“In 2015, 4,789 ADA Title III lawsuits were filed in federal court, as compared to 4,436 in 2014,” she wrote in a post co-authored by members of the Seyfarth Shaw research department, “That 8% increase is modest compared to the surge we saw, and reported in 2014. In 2014, the number of ADA Title III lawsuits increased 63% over the 2,722 lawsuits filed nationwide in 2013.”
Seyfarth Shaw Snapshot:
• California, Florida, New York, Texas, and Arizona had the most ADA Title III lawsuits — a total of 3,847 cases. This accounts for 80% of the lawsuits filed nationwide.
• Although California and Florida continue to be the most popular venues for ADA Title III lawsuits, the number of cases filed in those states in 2015 decreased by 11% and 14% respectively.
• Arizona experienced a surge in lawsuits. Plaintiffs in Arizona filed 25 times more cases in 2015 than they did in 2014, for a total of 207 lawsuits in 2015. Other states with substantial increases in the number of lawsuits were Georgia (from 20 to 96), Illinois (from 29 to 84), New York (212 to 366).
'Serial Filers' & 'Testers':
Many of the suits are generated by what are called “serial filers”.
“We see the same ones over and over again,” said Vu.
For example, in 2015 Tal Hilson was a plaintiff on 136 cases.
In the suits reviewed by the Call Christina team, he is described as a “tester”.
“A tester is a person who says I’m going to go out there and test businesses to see if they are in compliance with the law,” said Vu.
Hollywood-Fl-based attorney Mark D. Cohen filed 280 ADA suits last year.
“In Florida, Mark Cohen is a regular lawyer who files a lot of these lawsuits,” stated Vu.
Slapped With A Suit? What To Do:
“From the businesses' perspective, I think the businesses are frustrated because they don’t think people with disabilities are having any trouble using their facilities at all,” said Vu, “From the disabled community’s perspective we’ve had this law for over 20 years. So perhaps people should know what to do.”
Here’s the deal, if someone is determined to file an ADA suit against you they probably will be able to find something wrong because the rules are so particular.
“They are always going to find something wrong with your property,” said Vu, “It’s really hard to be perfect.”
“The enforcement is done by complaints and lawsuits but the spirit of the law is to get the compliance not to get other people’s money,” stated Garnett, “Scare letter like that you are going to pay.”
Experts say your best bet is to get into compliance and remember; deciding to settle instead of making the changes doesn’t make the problem go away. You can be sued again by someone else for the very same issues.
“If you don’t want to be a target and you don’t want to be sued the best thing is to try and be in compliance,” said Minerley.
WEB EXTRA: Ken Minerley offers advice to small business owners hit with ADA lawsuits
“It’s good to fix the issues,” said Vu, “I mean at the end of the day anybody walking into your business with a legitimate motive or not a legitimate motive can bring a lawsuit against you if there are these violations present, and so it’s best to spend the money on fixing rather than fighting in my view. The statue does contemplate a private enforcement mechanism because the Department of Justice can’t be everywhere. They are the ones doing the enforcement but they have limited resources. The good news is the people with disabilities just want to be able to get into your business and enjoy the same goods and services as everybody else.”
Getting Into Compliance:
The Justice Department is the law enforcement agency responsible for enforcing Title III of the ADA, and does so through complaints, lawsuits, consent decrees, settlement agreements, and alternative dispute resolution (mediation).
All the business owners who spoke with Local 10 News said they had difficulty navigating the ADA website and identifying what is required of a business or property owner.
The "Call Christina" team reached out to the US Department of Justice on their behalf which provided this primer for small businesses:
http://www.ada.gov/regs2010/smallbusiness/smallbusprimer2010.htm
Additionally, if any of the small businesses have further questions regarding compliance, they can reach out for more information and technical assistance at 800-514-0301. ADA Specialists are available to provide ADA information and answers to technical questions on Monday, Tuesday, Wednesday, and Friday from 9:30 a.m. until 5:30 p.m. or on Thursday from 12:30 p.m. until 5:30 p.m. (Eastern Time). All calls are confidential.