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Businesses Vulnerable to 'Drive-by' Lawsuits By John Haughey PORT CHARLOTTE -- A commercial complex recently settled a lawsuit by paying attorney fees and agreeing to meet standards mandated by the Americans with Disabilities Act. But many more local businesses do not meet ADA regulations and are vulnerable to "drive-by lawsuits." "They are holding business owners hostage," said Barry McDonald, who owns Copy Corner Printing Center, one of eight Central Plaza businesses on Olean Boulevard sued for ADA violations. "This was nothing more than a drive-by lawsuit," he said. Not so, say representatives of the Centers for Independent Living, which filed the suit. Former CIL Executive Director Ronald Muschong said the suit was filed in U.S. District Court in Fort Myers after plaza businesses failed to respond to repeated citations. Muschong said Central Plaza was fortunate, noting "a bunch of slimeballs" are targeting businesses statewide with ADA lawsuits that seek financial damages, not compliance. And they're often successful because many businesses are not ADA-compliant, he said. "If these guys nailing businesses in Collier and Lee counties come to Charlotte County, businesses here will be in a lot of trouble," he said. U.S. Representative Mark Foley said Muschong's warning is legitimate. "People are starting to see these lawsuits spreading everywhere," he said. Foley has introduced a bill in Congress that would give businesses 90 days to meet ADA standards before they can be sued. "What I am hoping to do is give business owners a legitimate chance to fix properties or make them compliant without the expense of litigation," he said. The Americans with Disabilities Act was adopted in July 1990. Its "Title III" component requires businesses built after 1990 make access "readily achievable" for the disabled. McDonald said Central Plaza was in ADA compliance before being damaged during Hurricane Charley. While rebuilding, he said, county building inspectors said because the plaza was built before 1990 and suffered less than 50 percent damage, it was not required to meet ADA codes. However, last August, the businesses were contacted by the CIL's Muschong and Grover Mudd, who is also on the county's ADA advisory board. Mudd visited the businesses at least once and Muschong notified them by mail three times that they did not meet ADA requirements. "We received no response," Muschong said, noting he sent a second letter in October. "In November, I sent a third letter with a deadline to respond. It was totally ignored." McDonald said he wasn't aware of the gravity of the situation until he received a letter via registered mail in November. "After that," he said, "we got the paper for the lawsuit." Central Plaza agreed to pay $5,000 in attorney fees and to install improvements, McDonald said. It isn't much money, McDonald said, but the system is unfair. "Anybody they feel is not in compliance, they can take them to court and sue," he said. Mudd said the suit is a failure, not a triumph. "My goal is to get compliance so they won't be sued," he said. "Things that are wrong can be fixed for about a quarter of what lawsuits cost." Thomas Schmokel, a Tallahassee-based ADA consultant, said what happened to Central Plaza business owners is typical. "A lot of people don't know the rules -- especially if you are rebuilding," he said. Schmokel blames building inspectors who issue certificates of occupancy to businesses "that don't meet the codes." But, ultimately, Schmokel said, it is up to businesses to ensure they meet standards. "I am a person with a disability so I can't say it is completely wrong to sue somebody," he said. "In many instances, it is a lack of education." One misconception, Schmokel said, is that the 16-year-old law has a "grandfather clause." "There is no such thing as grandfathering as far as the ADA goes. Building inspectors have been saying that forever, and it's not true," he said. Mudd said the county's ADA advisory board has a "blue card" program that notifies businesses of possible violations and offers to help them meet codes. "I go to them and say, 'You are not in compliance, but if you do this, there is no way you are going to get sued,'" he said. Businesses are being sued statewide, not by legitimate ADA advocacy groups, but by "professional plaintiffs." Norm Rogers, who owns Char-Lee Enterprises, a regional paving company, said suing ADA-deficient businesses is lucrative. "There's quite a few of these guys," he said. "They go around and have an individual try to get into a place that doesn't have a clean right of way. They raise hell and then sue everybody." Schmokel said a trio of Miami-area attorneys have filed about 700 ADA suits since 1998. "They are just doing it for the money," he said. "They are holding a knife to peoples' throats." "They travel around and sue hundreds of business owners on a given day," Foley said. "A business receives a letter from an attorney that tells them, 'Send me $5,000 for my time.' It comes as a huge shock because they don't know they are in violation." "That is shameful," Mudd said. "It hurts the ADA, and it hurts businesses." McDonald admits the CIL suit is relatively benign compared to what is happening elsewhere. But it is a warning. "We got hit, you could get hit," he said. "Become compliant or you're next."
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A Feast
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