By Chuck Strouse
By Scott Fishman
By Terrence McCoy
By Ryan Yousefi
By Ciara LaVelle, Kat Bein, Carolina Del Busto, and Liz Tracy
By Pepe Billete
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By Kyle Swenson
According to attorney Marcus, most property owners served with an ADA lawsuit are eager to settle and thus save on the high cost of hiring a lawyer. (Of the twenty suits she has handled, Marcus says, none has gone to trial.) Still, a property owner may end up negotiating a settlement that results in very expensive -- and sometimes unnecessary -- remodeling. Daniel Holder says ignorance of the law, or a willful avoidance to comply with it, contributes to excessive costs. "As long as businesses are not in compliance they are sitting ducks, and the attorneys know that," he observes. "If they have gone through the process to comply, then they are defensible and chances are the attorneys will go on to someone who is not in that position."
(Existing businesses are allowed considerable leeway under the ADA. They are required only to make changes that are "readily achievable," which is bureaucratese for remodeling that won't be financially ruinous. The Department of Justice and the Small Business Administration jointly publish a guide for small businesses. It's available online at www.usdoj.gov/crt/ada/smbusgd.pdf or through DOJ at 800-514-0301. TDD users can call 800-514-0383.)
To illustrate his motivation in filing so many lawsuits, Martin Marcus recently suggested lunch at the 1800 Club. Even though he sued the property owners last July because of their lack of ADA compliance, he likes the venerable bar and grill, located at 1800 N. Bayshore Dr., because the food is decent, it offers a sports channel he can't get at home, and it is literally right next door to his condominium. A caregiver guides him on the short but precarious journey from his building to the restaurant, during which he is forced to travel down the roadway because the sidewalk is too uneven for his wheelchair.
Marcus avoids the front door and its two steps, which would require him to tilt his wheelchair dramatically. The aide wheels Marcus down a sidewalk to the rear door and knocks. Employees hurriedly move tables and chairs out of the way. A kitchen employee and Marcus's aide lift the wheelchair over a five-inch-high step and into the restaurant. "They could easily make this accessible," he grouses as he eyes the step.
Although his lawsuit against the restaurant has been settled, Marcus has yet to see any remodeling. The settlement gave Ader Properties, owner of the building, a specific amount of time to complete the changes. Because the terms are confidential (including the attorney's fees paid), partner Robert Ader says he cannot reveal all the details, though he does confirm that the bathrooms will be redone at an estimated cost of $40,000 to $50,000 and that a ramp will be installed at the restaurant's rear door. (Owing to the slope and size of the entrance required, the door will have to be widened and the sidewalk leading to it realigned.)
But Ader has his own complaints. He says Marcus didn't need to slap him with a lawsuit in order to force changes. If he simply had been briefed about the ADA problems, Ader Properties would have undertaken the necessary remodeling. "I think he's obviously teamed up with lawyers to make some money," ventures Ader, who himself is an attorney.
Ader favors a bill introduced by Florida congressmen Mark Foley and E. Clay Shaw that would require plaintiffs in ADA cases to give 90-day notification before suing. That would allow small businesses time to achieve compliance before incurring the costs of settling or fighting a lawsuit. Marcus opposes the legislation. The 90-day notification period, he believes, will only encourage businesses to weasel out of their obligations. As long as a property owner has done something -- installed a handicapped space or inquired about a door ramp -- his or her attorneys could appeal to a judge for more time. "It's horseshit," he grumbles.
He returns to the subject of the recent settlement that allowed five years for compliance and warns that people can forget. And besides, he'll likely be dead by that time. "Then," he says grimly, "someone else will have to come along and sue."