Lawsuits Against Restaurants at Center of Md. Debate Over Disabilities Act

September 6, 2007

Jeri Wasco, who has cerebral palsy and uses a wheelchair, visited a Hyattsville, Maryland shopping center recently and found curb ramps that were too steep and no elevators going to the second floor.

She filed a federal lawsuit last week against the center’s owners. It was, in fact, one of four she filed last week against Maryland businesses, alleging violations of the Americans with Disabilities Act of 1990.

Counting those four, Wasco has been a plaintiff in 38 lawsuits alleging violations of the ADA in Maryland. She has also been involved in another nine ADA cases filed in the District of Columbia.

Depending on who is asked, lawsuits like Wasco’s are either a fair and effective way to bring businesses into compliance with the law, or “drive-by” litigation spurred by filing mills in which attorneys glean high legal fees for quickie lawsuits.

“The whole goal of the ADA is accessibility, not to make a few unscrupulous attorneys rich,” said Melvin R. Thompson, vice president of government relations for the Restaurant Association of Maryland.

A review of U.S. District Court records by The Daily Record shows that since 2003, 126 lawsuits have been filed in Maryland by two attorneys on behalf of fewer than a dozen individuals.

Joel Zuckerman, who has been lead or co-counsel in 108 of those cases, said there are still many businesses that are, knowingly or unknowingly, out of compliance.

Zuckerman’s partner, Gene Zweben, also said the cases hinge on the central point that clients want to go somewhere, should be able to, but encounter barriers when they do and the most effective way to address that issue is through a lawsuit.

“People were enthusiastic about going to places after the ADA was enacted. Over the years though, they noted it wasn’t progressing as expected and they have gotten frustrated,” Zweben said.

Thompson, of the Restaurant Association, said businesses recognize the need to provide customers with disabilities with an experience equal to everyone else, and they want to comply.

The problem, he said, is that businesses often are unaware they are not in compliance, and before they know it they are facing a federal lawsuit and paying thousands of dollars in legal fees to fight an unbeatable case.

Russell Holt, though, sees it differently. He has used a wheelchair since a car accident 21 years ago.

His frustration level rose over time, and he reached the boiling point after a visit to an oceanside resort when a town bus with a chair lift stopped, but the driver pulled away after telling him he did not have time to bring him aboard.

Now when he frequents an establishment with violations that should have been addressed, he signs on as a plaintiff.

“To me, these lawsuits are a last resort: I hate to have to do it, but they do work,” Holt said. “When you talk to them, the business owners will pat you on the head, and say, ‘we’ll do it, we’ll do it,’ and nothing ever gets done.”

Business owners, though, say there should be some grace period between being notified of the violation and being subject to federal suit, with responsibility for the other side’s legal fees.

“In the restaurant industry we’ve been battling the problem with this federal law, since it’s one of the few laws that never gives businesses a chance to remedy the problem before a lawsuit,” Fred Rosenthal said. He co-owns Jasper’s Restaurant in Greenbelt, Md. “So, it’s created a cottage industry for lawyers to take advantage of this.”

Zuckerman said complaints like Rosenthal’s are common when working ADA compliance lawsuits so he now gives the business owner a 60-day grace period before filing a lawsuit.

“The biggest complaint we heard was, ‘if you had told us first, we would have done it,”‘ Zuckerman said. “So, essentially, I called their bluff.”

Zuckerman said he backed the decision for two reasons. He said his clients felt better about giving the business a last chance and, if the letter was ignored, it would make the case even stronger in court.

“Maybe one out of 20” business owners sign a plan that heads off court action after receiving the letter, he said.

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