Group Targets Phoenix-Area Businesses With Flurry Of ADA Lawsuits

By  Will Stone
Published: Tuesday, August 9, 2016 - 10:04am
Updated: Tuesday, August 9, 2016 - 3:35pm

(Photo by Will Stone - KJZZ)
Kimber Lanning owns a music shop in Phoenix. She was sued recently for not having her sign high enough, which is a violation under ADA regulations.
(Photo by Will Stone - KJZZ)
Peter Strojnik and Jennifer Rogers are part of a new Phoenix-based organization, Advocates for Individuals with Disabilities, which has been suing hundreds of Arizona businesses for ADA non-compliance.
(Photo courtesy of ADA.gov)
An example of ADA parking lot regulations.

When Kimber Lanning got served papers for allegedly violating the Americans with Disabilities Act, her first question was, how soon I can fix it?

“I had no idea that there was a height regulation on the signage,” Lanning said as she stood in the parking lot outside her music shop Stinkweeds in Phoenix’s Uptown neighborhood.

“Secondly, I thought ‘Surely, there’s 15, or 30 or even 60 days to comply,' but in fact, none of that was true,” she said.

Glance around Lanning’s parking lot with its van accessible space and her business might seem like an unlikely target. Even though she says the rest of her business is ADA compliant, just one violation— not having her sign the required five feet off the ground— was enough for a lawsuit.

“They’re looking for sign height because it’s a loophole. So in other words they’re not going around and actually checking businesses for accessibility,” Lanning said.

This is a familiar accusation among hundreds of businesses in the Valley that have been sued in recent months for various parking lot violations— not just signs, but also, for example, not having a wide enough van accessible space.

Lanning heads the Phoenix business association Local First and has spoken with dozens of local business owners who have been sued this year.

“We’ve had a business call us practically in tears, [asking] 'Can we have a payment plan?' This is a lot of money, especially to get hit with in the middle of the summer when business is slow,” Lanning said.

Like most of the businesses that have been sued, Lanning settled the case rather than pay even more to fight it. And though the terms of the settlements are confidential, the complaints generally demand the same thing: fix the violation and pay $5,000 in attorney’s fees.

“I am not saying that businesses are bad or evil. I think that they are simply consciously indifferent to the plight of the disabled,” attorney Peter Strojnik said. He has filed nearly 2,000 of these cases in Arizona on behalf of an organization formed earlier this year called Advocates for Individuals with Disabilities (AID).

“Once we file, number one they have to comply, and, yes, they have to pay the costs, expenses and lawyer’s fees, but the fact is they can’t complain, they’ve known,” Strojnik said.

The ADA was passed more than two decades ago and prohibits discrimination against people with disabilities in public accommodation, employment and elsewhere. Strojnik says businesses should be following the law at this point.

But the sign regulation, for example, wasn’t actually implemented by the Department of Justice until 2010.

Strojnik says all settlement money goes straight to AID, and the group uses that money to pay for wheelchairs and other things for people with disabilities.

“I don’t make any money. We make it a policy decision,” he said, “because we do not want to be accused of doing anything even close to improper."

Defense lawyer Lindsay Leavitt said, “I’m somewhat skeptical of that representation, but we don’t have actual facts at this point,” to a room full of business owners at a recent meeting in Mesa. Leavitt is defending more than 100 clients being sued by AID.

He says he plans to bring one of the cases to trial so they can make all the facts public. While the ADA is well-intentioned, Leavitt says he’s “not sure that when it was signed into law, that 1,300 lawsuits in a year against small businesses in Arizona is kind of what they had in mind.”

Because AID just recently gained 501(c)(3) status, its finances aren’t fully available yet, but Strojnik rejects the assertion that AID is doing anything untoward.

According to AID’s executive director Jennifer Rogers, an anonymous donor with a disability provided the seed money, but most of its revenue is coming from lawsuit settlements— roughly 200 so far. The organization was originally founded as Advocates for American Disabled Individuals, but later changed its name to Advocates for Individuals with Disabilities. After filing the first batch of lawsuits, AID mailed out 42,000 letters in June to businesses in Maricopa County warning them of possible ADA non-compliance issues.

Rogers said AID has 35 full time employees and is currently operating at a loss. She couldn't provide exact figures for how much of its revenue goes to donations for people with disabilities.

While its tactics are angering many, Phoenix-based civil rights attorney David Don, who has no involvement in these cases, says Congress did intend that private litigation would be the primary means of enforcing compliance.

“ADA enforcement in general is a public good,” Don said. “It’s benefiting not just the plaintiff, but everyone who will encounter that business in the future.”

The plaintiff listed in legal documents in roughly the first 500 cases is a Scottsdale man named David Ritzenthaler who works with AID and never actually visits all the establishments that are being sued. But Don says it’s well-established under the law that simply the knowledge of a violation can be part of a sufficient basis to sue.

"When people are caught speeding, you can either blame the police officer or the speeder," Don said. "The focus needs to be on the violators, not the methods of enforcement."

Less than 10 percent of public buildings are compliant with the ADA, according to recent federal estimates. 

“The attorney needs to be compensated,” he said. “On the other hand, if a lawyer brings a case for just a few violations, and is trying to get paid without ensuring that the business becomes compliant as a result of the lawsuit. Then while that may be legal, that’s not a practice that I agree with.”

Although Don says asking for $5,000 in fees for a complaint based on a few parking violations, at least if the case is settled quickly, seems excessive, but Strojnik says his fees have never been less than that per case.

Sally Harrison is president of the Mesa Chamber of Commerce and has spoken with dozens of the local businesses and property owners that have been sued. 

“I have yet to talk to anybody who has actually had any kind of follow up after they have gone out and made the corrections,” she said.

Indeed, none of the businesses that KJZZ contacted saw someone come back and check for compliance. Many said it appeared that AID has used Google to capture photos of their parking lots.

According to AID, the settlements only require the initial parking violations to be fixed, but they do also include language asking businesses to become fully compliant, both inside and outside.

Strojnik says their complaints only focus on parking issues because he doesn't "feel comfortable sending an investigator into a store to take photographs and ensure the entire store is ADA compliant."

He said that often the settlements don't amount to $5,000 and he tries to be flexible with offending businesses. While AID is not entitled to damages under the federal law, some of the complaints request damages under Arizona's version of the ADA. Strojnik said he believes that damages are awardable, but if he were ever in front of a jury he would only ask for nominal damages.

Strojnik said he has a disability himself and spends 40 to 60 hours a week on AID's cases pro-bono. However, these are not the only ADA cases he's filed in Arizona.

He and his son, another attorney named Peter Kristofer Strojnik, have filed many cases on behalf of a woman named Theresa Brooke against businesses for such violations as not having a swimming pool lift. None of those cases are connected to AID, though.  

"The lawsuit is a wake-up call," Strojnik said, adding that parking lot violations are often "symptomatic" of other ADA non-compliance issues.

With AID promising to continue its work, the price tag for businesses is likely to grow.

KJZZ's Kathy Ritchie contributed to this report.

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