Businesses faced with ADA challenges
Defendants generally have 20 days to answer charges in federal court
By BOB McCLURE
| Article published on Tuesday, Sept. 15, 2009 |
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A number of businesses in the Seminole-Largo area are being targeted in a crusade to provide better accessibility for disabled persons.
In recent weeks, various business owners have received summons from the U.S. District Court, Middle District, in Tampa, stating their buildings were in violation of the 1990 Americans With Disabilities Act.
The plaintiff in all of the cases is Joe Raetano of Clearwater and the attorney representing Raetano is Todd Shulby of Davie.
According to Clearwater attorney Robert Walker, who defends businesses in ADA-related cases, Raetano, a wheelchair-bound advocate for the disabled, works closely with Shulby and Thomas Joseph Ricci of Tamarac, who serves Shulby in a “consulting” role on ADA standards. He said the trio operate in a trade called “drive-by” litigation.
Defendants don’t have too many options. They can fight the case in court and face the chance of losing and thereby dropping thousands of dollars in fees to Shulby and Ricci, or accept a settlement offer from Shulby, who in turn drops the lawsuit.
Some refer to the practice as “legal extortion.” According to Walker, judges have attempted to put a stop to the practice but their actions have been reversed by the appellate courts.
Filing is done very easily online. Shulby files as many as 20 cases in a day.
A case involving Narzinsky Realty, 9201 Park Blvd., was filed Aug. 19, the same day a case was filed against the owner of the building that houses Fortunato’s Italian Pizza, 7700 Starkey Road.
“People get scared (when they receive a court summons),” said Vinnie Fortunato, owner of Fortunato’s Italian PIzza. “You’ve got to hire a lawyer and pay him. It could cost thousands.”
In both cases Raetano asked for a permanent injunction “enjoining the defendant from continuing its discriminatory practices” and ordering the defendant to remove the physical barriers to access and “alter the subject facility to make it readily accessible to” and useable by those with disabilities.
Both businesses consider their operations in compliance to ADA requirements and question whether Raetano set foot on their property.
“They don’t care about compliance,” said Fortunato. “They’re just worried about money.”
Santo Sardo, owner of Super Sardo Pizza, 10839 Ulmerton Road, also received a summons last week.
“I’m going to fight it with everything I’ve got,” he said. “I’m not going to give into them. We’re all here just trying to stay alive. It’s not fair. It’s not right.”
“It’s a mass-mailing by an attorney who is shot-gunning businesses with complaints that they’re not meeting ADA standards,” said Mark Ely, Community Development Director for the city of Seminole. “They’re basically saying we’ll solve your problem if you pay us X amount of dollars. If you’re in compliance by city or county standards, you have nothing to worry about.”
“I think they prey on people and depend on people not going to court,” said Erwin Narzinsky, owner of Narzinsky Realty. “You have 20 days to answer the complaint. If you don’t respond, they’ll enter a judgement against you for default.”
Narzinsky is taking a proactive approach. After contacting his liability insurance company, he was put in touch with Tampa attorney Greg Jones who is seeking a dismissal of the lawsuit.
Jones contends the lawsuit is vague and doesn’t mention days, times or specifics of any violations on Narzinsky’s property.
However, Narzinsky admitted, if successful, Shulby could come back with an addendum to the original lawsuit and force another round of legal action and expense.
That’s why many businesses just settle for the settlement fee, which is often in the $6,000 to $8,000 range, Narzinsky said.
Shulby said his firm generally sets the negotiation effort in motion.
“Although there is no strict rule,” Shulby said by e-mail, “settlement is more often than not something that is discussed by the parties at the inception of the case and we often initiate these discussions.”
Shulby said the fees are determined “by multiplying a reasonable hourly rate by the number of hours expended on the litigation, plus reimbursement of the litigation expenses and costs of litigation, if any.”
Accordng to ADA mandates, Lara Narzinsky said, plaintiffs can only sue over what they have actually encountered.
“They’re not doing that,” she said. “They’re using scare tactics.”
Interestingly, Narzinsky said, a nearby property on Park Boulevard does not have any handicapped parking spaces and its owners were not cited.
“I took this personally,” said Lara Narzinsky. “I have a disabled brother and a disabled tenant (in the building in question). I think the average commercial property owner, if they could do something (to help) the disabled, they would do so.”
About the only recourse for business owners is the proposed ADA Notification Act, which has failed to pick up support in Congress due to the efforts of trial lawyers and disability advocates.
If passed, plaintiffs would be required to notify defendants of alleged ADA infractions 90 days in advance of filing a lawsuit to give defendants a chance to fix the problems. Heavy lobbying by trial lawyers and disabled interests have prevented its passage.
The process of suing over alleged ADA violations is nothing new. Restaurants, hotels, shopping malls and other retailers are being inundated with the lawsuits, which some refer to as frivolous.
While testifying before Congress two years ago, Karen Harmed, executive director of the National Federation of Independent Business, lumped the ADA cases under the “frivolous” banner and Walter Olson, a fellow at the Manhattan Institute and the operator of a blog called Overlawyered, described the practice as a “shakedown racket.”
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Article published on Tuesday, Sept. 15, 2009
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