Local business owners are rankled at being named in lawsuits designed to force compliance with federal Americans with Disabilities Act provisions. Several business and land owners in Lihue and elsewhere have been served with papers naming them in federal lawsuits,
Local business owners are rankled at being named in lawsuits designed to force compliance with federal Americans with Disabilities Act provisions.
Several business and land owners in Lihue and elsewhere have been served with papers naming them in federal lawsuits, alleging ADA violations.
Some business owners have already negotiated settlements to keep from going to court.
The suits are “basically to extract $3,000 from each business owner,” said Al Ficker, owner of Kalaheo’s Rainbow Plaza, of the settlement amount reached in order to keep most of the filed cases out of court.
“It’s strictly a scam as near as I can tell, to extract money from people, using the federal law to do it, naturally,” said Ficker, who had to install an additional handicap-accessible parking stall and some other fixes at Rainbow Plaza even after one tenant had an ADA inspection done and was told the building passed compliance tests associated with the federal law.
“When somebody’s filing these things strictly as a money-making scheme, it doesn’t quite match the 4-Way Test” Ficker lives by as a member of Rotary International: “Is it the truth? Is it fair to all concerned? Will it build goodwill and better friendships? Will it be beneficial to all concerned?” he asked.
“Was she (the Kauai resident and wheelchair-bound defendant) really damaged? I don’t think so,” said Ficker.
The purpose of the suits is “to put businesses on notice that they have to come into compliance,” said Bruce F. Sherman, an Oahu attorney representing the wheelchair-bound Kauai woman, Juliette Pasion, who has been visiting local businesses and sometimes finding problems gaining access.
But some owners of local businesses, who didn’t want to be identified because of the pending litigation, say they never saw the woman try to gain access to their businesses.
“Obviously, many of them are very disappointed. Many of them feel they comply,” said Patrick Childs, a Lihue business attorney who has referred some of his served clients to attorney David Lum, an ADA expert, of the Oahu firm Char Sakamoto Ishii Lum & Ching.
Lum said some of the many Kauai clients he represents may go to court to fight the lawsuits, but at this point he didn’t know which ones.
Regarding businesses in general, and not necessarily clients he represents, Lum said some business and land owners blatantly violate ADA, while others do a very good job of making workplaces accessible.
“At least several of them had ADA studies on the premises, and some allegations in the lawsuit are clearly false,” said Childs. “In other words, many of these people do have handicapped parking and access.
“They feel they haven’t even been visited by this woman. Nobody remembers seeing this woman in their premises, or trying to get in their premises,” said Childs. “This is costing people a lot of money.”
There have been over 100 federal lawsuits filed involving Pasion, ADA and Kauai business and land owners dating back to 1998, court records show.
Some attorneys said a more civil way of informing business and land owners about potential ADA violations would have been through courtesy letters indicating that legal action could occur if compliance doesn’t happen, as opposed to Sherman and Pasion’s direct-to-lawsuit approach.
The main problems are lack of handicap-accessible parking, restrooms, curb cuts and entry doors, explained Sherman.
Not a single Kauai soul has taken him up on his standing offer to rent a wheelchair for three days to experience firsthand how difficult it is to navigate Kauai.
“The intent of the lawsuit, purely and simply, is to bring Kauai into compliance” with ADA, said Sherman.
“It’s unfortunate that after more than 10 years of (ADA) being in effect, a number of businesses are not in compliance.
“What is also particularly troubling about Kauai is that there has been a fair amount of what’s called new construction, subsequent to 1992,” that should have been built, or rebuilt after Hurricane Iniki, to comply with ADA requirements, Sherman said.
“What we can’t understand is why it wasn’t made compliant then,” he continued.
“The lawsuits are also to put businesses (that haven’t been served) on notice that they have to come into compliance,” said Sherman, who has been heartened to hear about and see local businesses coming into compliance before being served papers.
“That’s very encouraging. That makes the lawsuits to date worthwhile,” said Sherman.
The ADA provides for defendants to pay plaintiff attorneys’ fees, Sherman says because the federal Department of Justice doesn’t have the time and manpower to pursue non-compliant businesses. So, compliance suits are driven by private attorneys, he said.
The legislation also provides tax breaks for business or land owners installing accessible parking stalls and similar fixes, he noted.
“None of these cases should go to trial,” said Sherman, adding that he is always willing to work with defendants on compliance timetables.
“I guess what I’m surprised at is – although it seems to be changing now – how long it’s taken businesses to come on board. It’s not our intention to put anyone out of business,” said Sherman, who understands that both he and his client are not the most popular people on Kauai right now.
“I know that a number of businesses – probably almost all of them – would like to see me go away forever. But that’s not going to happen,” he said.
“The bottom line is you gotta come into compliance. We are always willing to work with defendants if they need time to put in a fix or make a correction,” said Sherman. His client should be applauded for her “guts” in identifying non-compliant businesses, said Sherman. Instead, she has received a lot of hang-up calls at her home, he said.
