Few could dispute the unfairness of inaccessibility to necessities like bathroom facilities for disabled persons. But reciprocally, how fair is filing frivolous litigation over it?
To Colodny Fass Associate Tim West, perspective was everything in a recent victory he achieved working with Firm Partner Joel Fass on behalf of a South Broward pizzeria owner in a case involving disabled persons’ access under the Americans With Disabilities Act (“ADA”).
When a disabled man filed suit against the pizzeria claiming it failed to provide ADA-compliant restrooms, the pizzeria owner knew he had to find legal representation—and quickly–given that his restaurant did, indeed, have a fully disabled-access restroom quite literally next to the regular facilities. The Plaintiff’s action even came complete with an alleged third-party “expert” opinion.
For West, who readily describes himself as “left of liberal,” the thought of any disabled person being denied access to anything was nothing short of reprehensible. But he set aside his immediate sentiments to explore the matter objectively, beginning with a visit to the pizzeria together with Fass. They weren’t at all surprised at what they found.
Armed with an ADA compliance checklist, the two lawyers performed an onsite investigation, concluding that the Plaintiff and his accompanying ADA “expert” simply failed to notice a fully compliant ADA restroom located immediately adjacent to the restroom referenced in the lawsuit.
“If there was a way to reform the system that essentially punishes business owners who, in good faith, try to comply with the ADA, then that would be a win-win for everyone,” West said. “That our client received no opportunity whatsoever to allay the Plaintiff’s concerns prior to the lawsuit being filed indicates there’s a need for systemic change.”
After visiting the pizzeria, West and Fass returned to the office to telephone the opposing counsel. Predictably, the call was short and decisive, essentially resulting in a withdrawal of the Plaintiff’s complaint.
“Because the ADA requires that a restaurant like our client have only one ADA compliant restroom, we were able to convince (the opposing counsel) to file a notice for voluntary dismissal with prejudice prior to Colodny Fass filing a responsive pleading or notice of appearance,” West explained. “One less case to clog our overburdened court system.”
In order to have standing to sue as a (facilities) “tester” under the ADA, West related that one must:
- Be disabled;
- Visit a place subject to the ADA (most places of public accommodation);
- Observe/experience ADA violations; and
- Allege the tester intends to return to the place but for the violations.
“The problem is that frequently, small business owners have no idea they are not in compliance and first learn of the alleged violations when they are slapped with a lawsuit,” he added. “I am hopeful that getting the word out about cases like this and educating business owners about their rights will bring the grass roots groundswell to effect ultimate legislative change.”
To consult with Colodny Fass Florida Litigation Lawyers Joel Fass or Tim West, call (954) 492-4010.