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ADA lawsuits: Courting accommodation or cashing in?

Attorney David Calvert specializes in Americans with Disabilities Act discrimination cases. (Sept. 6, 2016)
Attorney David Calvert specializes in Americans with Disabilities Act discrimination cases. (Sept. 6, 2016) The Wichita Eagle

Guadalupe Adams of Winfield has filed 176 lawsuits against businesses in multiple states under the Americans with Disabilities Act – three in Kansas on July 20 alone.

But far from being a publicity-seeking crusader, she’s a mystery to those she has sued.

“I’ve never met her,” said David Calvert, a Wichita attorney who has defended a number of the suits.

Instead, he has dealt exclusively by email and court filings with her attorney, Pete Monismith, who is based in Pittsburgh, Pa.

ADA lawsuits are increasingly common in Kansas and across the country. Critics say the increase is because of people who have made it a cottage industry: Attorneys and handicapped individuals who routinely file suits against businesses, hoping for an easy settlement.

Adams said she files the suits because she is motivated by a desire to help others in her situation. Monismith didn’t return repeated calls seeking comment.

The plaintiffs demand specific physical changes by the businesses – and $5,000 to $10,000 in attorney’s fees.

Critics use the term “drive-by” ADA lawsuits. They contend that such suits are filed by individuals who aren’t patrons of the businesses, but rather people simply looking to extract money.

But the suits are legal and have been since the Americans with Disabilities Act was passed in 1990. So far, they have withstood most political efforts to curtail them.

The ADA is the hammer to get businesses to make the changes necessary for the handicapped, proponents say. The businesses sued in these cases are almost always out of compliance in some way.

It’s a practice that leaves Calvert frustrated.

Calvert uses a wheelchair and is known in Wichita as a champion for the disabled. He has sued businesses and governments to improve access. To him, the ADA should be about making businesses more accommodating, rather than extracting money.

“My view is that we can solve a lot of problems just by writing a letter because, unfortunately, some people are not real knowledgeable about the ADA,” he said.

A growth industry

In the first half of 2016, more than 3,400 ADA lawsuits were filed in federal courts across the U.S., an increase of 63 percent from the first six months of the year before, according to the Seyfarth Shaw law firm, a national firm that defends large companies against ADA lawsuits.

In 2013, 2,722 ADA Title III lawsuits were filed the entire year.

The ADA’s Title III applies to private businesses that are accessible to the public, such as motels, shopping centers, stores and restaurants. It provides specific requirements on how to improve accessibility on such items as the number of parking spaces, handicapped signs, angle of the access ramps, seating, door widths, bathroom stall widths and more.

The ADA Title III doesn’t allow the private plaintiffs to collect money. Its only provision is for the business, if it loses or settles, to fix the barriers and pay the plaintiffs’ attorney fees. This is designed to reduce the financial risk for the handicapped to file lawsuits without giving them a financial incentive to do so.

But the law has created an incentive for the attorneys to sue, said Minh Vu, partner and ADA Title III Team Leader for Seyfarth Shaw.

The incidence of handicapped individuals encountering barriers in local businesses should be falling, not rising, she said, because buildings erected after 1992 are required to be compliant with the ADA.

“Over time the world has become a much more accessible place,” she said. “In that sense, it raises perplexing questions about why there are so many lawsuits in the area of accessibility.

“The short answer is more lawyers have discovered an easy way to make money,” she said. “That is the bottom line.”

How it works

Monismith has been Adams’ attorney since 2009.

Despite not returning phone calls seeking comment, he provided some insight into his practices in a lawsuit he filed in 2014 against an ADA consultant whom he accused of poaching some of his clients.

Monismith, who has filed 426 ADA cases since 2010, filed suit against David Pedraza, a Fort Lauderdale, Fla., contractor. Pedraza – who had worked for Monismith in the past – works for both plaintiffs and defendants in ADA cases, identifying non-compliant building features.

In the suit, Monismith accused Pedraza of trying to persuade four of his clients, including Adams – then using her maiden name, Guadalupe Betancourt – to use another attorney.

He said, in the suit, that Pedraza had convinced one of the clients who lived in Michigan to come to Florida and visit properties that Pedraza had identified as having ADA violations. He later tried to convince the client to travel to Texas to visit properties, according to the suit.

Monismith said that Pedraza intended to harm his “means of livelihood” and one of his legal claims in the suit is “tortious interference with a business contract.”

Pedraza said he couldn’t talk about the case, but he isn’t surprised that an industry has arisen to push ADA lawsuits.

“That is how the law was set up and written: There are attorney’s fees awarded,” he said. “If I was an attorney I would be looking for laws that can be enforced with attorneys’ fees awarded.”

‘It’s a joke’

In April 2015, Monismith and Adams sued the owner of the La Quinta Inn on East Kellogg Drive alleging typical ADA shortcomings found in many of the suits.

A partial list of barriers listed in the suit include: The ramp at the handicapped parking spaces is too steep and the spaces are not wide enough for someone in a wheelchair; the pool is inaccessible to someone in wheelchair due to the lack of a pool lift; the slope at the front entrance and the rear entrance is too steep for someone in a wheelchair, and there’s no handicapped parking at the rear of the hotel.

What made this suit different is that the company, SH Hospitality of Scottsdale, Ariz., failed to contest the suit, resulting in the court entering a default judgment against it.

That allowed Monismith to seek attorney’s fees unchallenged. His filing became part of the court record.

In the filing, Monismith said he spent 25.2 hours at $425 per hour to coordinate, research and write the petition and file other motions, plus another two and a half hours of his paralegal’s time at $115 per hour, for $10,997.50 for time spent on the case.

He also sought reimbursement of nearly $1,799 in expenses, including $1,200 for a Florida-based consultant, William Cody, to visit the property and catalog the items out of compliance.

Monismith was awarded the entire $12,796.50.

Except for the list of the actual violation claims, the nine-page petition is virtually identical to all of his other petitions.

Local businessman Paul Hanneman said he paid far less to settle after he was sued.

Hanneman owns Dairy Queen restaurants in Andover and Derby. He said he was sued under the ADA for violations at the Andover location in 2009 or 2010.

After that, Hanneman said, he had the same consultant who visited his Andover store on behalf of the plaintiff visit his Derby store and suggest fixes so he wouldn’t be sued again. He made some of the fixes, but the consultant told him that some changes wouldn’t be viewed as required under the law.

Title III of the ADA requires a long list of structural accommodations, but then relieves businesses in buildings older than 1992 of having to make expensive changes that are, in the law’s phrasing, “not readily achievable.” Exactly what is or isn’t readily achievable is determined on a case-by-case basis in court.

In 2015, Adams sued Hanneman for a variety of violations at the Derby Dairy Queen. Hanneman was mad because he thought he had done everything he needed to.

“They wanted 10 grand,” Hanneman said. “I told the lawyer to offer $1,000. They said, ‘We’ll take $5,000.’ I said, ‘I will give you $1,500 and if you don’t take it, I’ll take you to court.’

“They took it.”

Hanneman said he cares about doing right by his disabled customers. When the violations were called to his attention, he said he willingly made the changes.

He thought he was doing enough. That’s why he finds the current system flawed.

No older building is 100 percent in compliance, and some violation can always be found, he said.

“It’s a joke – drive-by lawyers, ambulance chasers,” he said. “They’ll keep doing it until somebody takes them to court.”

Who is Guadalupe Adams?

Guadalupe Adams has a house on East Sixth Street in Winfield that is 600 square feet with a sagging roof and several windows covered by plastic and tinfoil, instead of glass.

The front porch held tattered furniture. Toys and trash were on the ground. There was a homemade ramp up to the porch.

Adams, 41, is short, with dark hair and glasses. She sat in a wheelchair.

She was cordial, but wary and immediately handed a reporter the name and number of her attorney, Monismith, and said to call him with any questions.

But Adams did answer questions, at least about why she files the lawsuits.

It’s not for money, she said. There is a provision in federal law for defendants to pay her attorney’s fees, but there is no provision for her to collect any money.

A search of Cowley County property records showed the house, valued at $7,140 by the county, is in the name of Adams’ husband Travis. There is no other real estate in the county owned by Travis or Guadalupe Adams.

There were several older travel trailers parked in the yard, but Travis Adams said they belonged to friends.

County records also show Cowley County suing Guadalupe Adams for $933 in unpaid utility bills at the house in 2013, again in 2014 and 2015.

She said she gets no money from the lawsuits Monismith files.

“I’m not going to make a dollar,” she said. “As you can see I don’t live in the best neighborhood.”

She said she did, in fact, visit all the places in the lawsuits and return to see whether they made the required changes.

She is motivated by a desire to help others in her situation, she said, and she doesn’t have much sympathy for the business owners.

“I’d like somebody to live in my shoes for just eight hours, to know what they can’t do,” Adams said.

“I don’t do it for myself,” she said. “I do it for others, for what they suffer on a daily basis, when it should be easier.”

When asked more specifically how the businesses were selected, the evidence gathered or how much money was collected, she said to call to Monismith. She refused to grant permission for a photograph without her attorney’s consent.

She called Monismith to check about the photo. Agitated at learning that she was talking to a reporter, Monismith instructed her and her family to refuse a photo, stop talking and ask the reporter to leave the property.

A better solution?

Calvert, the Wichita attorney, is torn by the ADA filings.

As somebody who uses a wheelchair, he understands the need for handicapped parking spots and wider bathroom doors. But he also understands the burden the suits cause to businesses. He has represented dozens of them in these suits.

There is another way, Calvert said: When a disabled person comes to him with a complaint about a business, he writes a letter to the business owner. That usually does it.

He’ll confer with the owner about changes, and the work is done. If it’s that easy, he won’t bill the client.

But Calvert said that’s his choice, and he is against mandating it. He said he needs the ADA as a club in case not everyone is reasonable.

A 2015 bill in Congress would have required the complaining person in an ADA case to send a letter specifying the violations and allowing the business owner to respond with a plan on how to fix them. Calvert opposes such a move because it potentially allows businesses to avoid acting.

Another approach would be to narrow who can file a lawsuit, requiring that they be an actual visitor to the business, said Vu, the lawyer for Seyfarth Shaw.

That may not affect Adams, who said she visits each of the locations.

Calvert said that narrowing the standing to who can file might help cut down some of the “drive-by” suits, but ultimately access for the disabled must remain a right, and the principle is not negotiable.

“Whether you approve or disapprove of ‘drive-by’ lawsuits, the fact of the matter is that it benefits more than the plaintiff’s attorney,” Calvert said. “It benefits people with disabilities.”

Dan Voorhis: 316-268-6577, @danvoorhis

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