HOUSTON — A quarter-century ago, the Americans with Disabilities Act required businesses to provide access to patrons in wheelchairs, including accessible parking spaces, curb cuts and ramps. But instead of making the government responsible, the legislation left it to individuals to enforce the law.

That unusual provision has turned the ADA into a cottage industry for lawyers who recruit clients from independent living facilities or disability rights groups and file lawsuits by the thousands against businesses with bathroom mirrors too high or ramps too steep — ultimately settling for several thousand dollars per case. One Texas man alone, represented by an Austin law firm, has filed more than 300 suits over the past 18 months, according to court records.

“You can make 50 grand in an afternoon just by stopping by a few stores,” said David Warren Peters, a California lawyer who has defended more than 400 businesses in ADA lawsuits. “It’s more profitable than narcotics.”

Lawyers filing the suits insist they are protecting the rights of those with disabilities. But businesses say they absorb thousands of dollars in legal costs — and ultimately pass them on to consumers — for minor problems, such as lowering coat hooks, that they would fix with a phone call. At the same time, some advocates for people with disabilities worry the barrage of lawsuits will make it harder for them to work with businesses on improving access and ultimately limit their ability to file lawsuits for serious violations.

“It reflects badly on the disability community,” said David Wittie, a disability rights organizer in Austin with ADAPT, an advocacy group. “When we ask for accommodations, all (businesses) hear is, ‘Oh my God, how much is this going to cost me to go away?'”

The wave of ADA-related litigation has spread from California, where a similar state law provides a minimum of $4,000 in damages for a person filing a successful lawsuit over public accommodations and some clients — dubbed “professional plaintiffs” by opposing lawyers — have filed as many as 2,500 cases each over five years. Across the country, ADA lawsuits filed in federal courts have jumped more than 60 percent over the past year, growing to more than 3,400 in the first six months of 2016, compared with 2,100 during the same period in 2015, according to data compiled by the law firm Seyfarth Shaw.

In Texas, the number of ADA cases filed has increased fourfold over the past year, to more that 200 in the first six months of the year from less than 50 a year earlier. Texas ranks fifth in the number of such lawsuits filed, behind California, Florida, New York and Arizona.

‘The runaround’

James Van Winkle has been in a wheelchair since he rolled over his 1965 Plymouth Barracuda in a single-car accident 21 years ago; the rusted frame still sits on his 2.5 acres north of Houston. Over the years, he became an activist on issues affecting those with disabilities, including public accommodations.

Sometimes, he can’t get to the restroom because of stairs. Or if he makes it to the facilities, he can’t reach the wash basin after using the toilet. And too often, he said, when he and other people with disabilities raise concerns about such obstacles, they are dismissed.

“We plead. We ask,” said Van Winkle, 60. “You get the runaround.”

About four years ago, Van Winkle attended a rally for the rights of people with disabilities in Washington and met a lawyer with Fuller, Fuller & Associates of North Miami, Fla. By that time, the firm had filed several lawsuits in Houston federal court on behalf of Florida residents who alleged disability discrimination while visiting Houston, according to court records.

The meeting turned Van Winkle from an activist into a serial lawsuit filer. In the past two years, he has filed 45 ADA lawsuits in U.S. District Court in Houston, suing department stores, shopping centers and restaurants. Van Winkle, still burdened by medical debt from the accident and getting by on Social Security and trips to the local food pantry, said he usually receives less than $500 per case.

Most of the money goes to lawyers, who Van Winkle said don’t tell him the settlement details. Van Winkle’s lawyer, John Fuller, did not return requests for comment.

Recently, Van Winkle showed the results of his legal activism at a small shopping center on Highway 45. One of his lawsuits, filed in September 2014 and settled three months later, forced the center to move parking for people with disabilities to a flat surface and reduce the slope of a wheelchair ramp.

“You can see all the new concrete,” said Van Winkle, pointing to curb cuts that now accommodate his motorized wheelchair.

Joe Fulcher, a Galveston lawyer who represents the shopping center, said he was prohibited from commenting by a confidentiality provision.

Fee for service

ADA lawsuits are usually settled, without depositions or lengthy legal briefs, several lawyers said. What needs to get fixed is rarely disputed. The biggest obstacles in negotiations are legal fees sought by plaintiff attorneys.

The lawyers who file the cases typically negotiate fees between $5,000 and $20,000 to settle each case, said Holly Williamson, a Houston lawyer who has represented local businesses accused of failing to meet ADA requirements.

Ronald Smeberg, a San Antonio attorney who acts as Van Winkle’s local counsel, scoffs that the cases are big moneymakers for lawyers. His arrangement with Fuller, Fuller & Associates is to attend hearings in Texas. For that, he said, he earns $175 an hour, compared with his regular billing rate of $275 an hour. Smeberg said he takes the cases more out of public duty than legal fees.

“The attorney general isn’t out there prosecuting these cases,” he said. “Neither is the federal government. If (Van Winkle) doesn’t step up to the plate, no one will do it.”

But businesses often are frustrated by the lawsuits. Many have no clue they’re out of compliance. And, they said, they don’t get an opportunity to fix the problems before the case goes to court.

After Manny’s BBQ in Conroe, Texas was sued by Van Winkle, the 100-seat restaurant agreed to boost the height of signs in the parking lot, lower bathroom door hooks and made the wheelchair ramp easier to navigate. It also will remodel the men’s bathroom, which is likely to cost upward of $10,000, said Mayela Tamayo, who owns the restaurant with her father, Manuel.

But the biggest expense? Legal fees, Tamayo said. She estimated she paid $21,000 in fees and other costs, most of it to Van Winkle’s lawyers.

To pay the unexpected legal bills, the restaurant, which hasn’t yet celebrated its second anniversary, had to cut back on sponsorships of youth groups and other community activities, as well as advertising, Tamayo said.

But the small restaurant had a financial incentive to settle. If the barbecue restaurant challenged the case and lost, under the federal disability law, the company would be responsible for paying whatever legal bills the plaintiffs ran up during a lengthy legal process.

“You can get killed on it if you lose,” said John Ely, a Houston lawyer, who represents Manny’s BBQ.

It takes a lawsuit

One Austin man, Jon Deutsch, has filed 386 lawsuits during the past 18 months. Jim Harrington, a lawyer representing seven of the businesses sued by Deutsch, opted to fight rather than settle.

Harrington recently retired as director of the Texas Civil Rights Project, the statewide legal advocacy group. He said he wants to stop the flood of “shakedown cases” so they won’t trigger congressional action that would make it harder to sue for more serious violations and eliminate incentives for businesses to comply with the law.

Harrington got involved in the cases after a taco restaurant in Austin was sued by Deutsch, who could not be reached for comment, for having only one designated access area for wheelchair loading and unloading and a door threshold that was too high.

Harrington said the typical settlement request is for $7,000 to $8,000, and many businesses end up agreeing to pay $3,000 to $4,000, figuring it’s cheaper than fighting.

“That’s why this is such a scam,” he said.

Omar Rosales, the Austin lawyer representing Deutsch, declined to discuss settlement offers or pending litigation. He said his client, whose spinal cord was severed during surgery, goes in his wheelchair to the same restaurants and businesses he visited before acquiring his disability but now runs into access problems.

“Unfortunately, it takes a lawsuit to get it done,” Rosales said.

Looking for windmills

Over the years, Congress has considered legislation to require businesses to receive advance notice of violations before any ADA lawsuits are filed, but none has passed. One of the latest bills was introduced by U.S. Rep. Ted Poe, R-Texas, who co-sponsored a measure last year to give businesses time to fix problems before they’re sued. The bill is supported by several business groups, including the National Restaurant Association, International Council of Shopping Centers and the American Hotel and Lodging Association.

In California, Gov. Jerry Brown recently signed a bill allowing small businesses to avoid paying damages if they fix ADA problems quickly.

Van Winkle doesn’t think much of these efforts to make it harder to file lawsuits to force businesses to provide legally mandated accommodations so people with disabilities have access to the same stores, restaurants and other businesses as all Americans. After all, he said, businesses have had more than 25 years to fix the problems.

“I call myself Don Quixote,” he said, “and I try to tilt that windmill one at a time.”

© 2016 Houston Chronicle
Distributed by Tribune Content Agency, LLC

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