Hickenlooper appointee files 64 disability access cases
February 17, 2017
The chair of Colorado Developmental Disabilities, an appointee of Gov. John Hickenlooper, has filed 64 lawsuits against Colorado businesses in the past two months, claiming they are out of compliance with the Americans with Disabilities Act. Mellisa Umphenour has filed these suits on behalf of her disabled 11-year-old son.
The cases mirror a spree of 71 lawsuits filed in Colorado between November 2015 and February 2016 by Santiago Abreu. Abreu hit several restaurants in Breckenridge, as well as locations in Denver, Colorado Springs and even a restaurant in Fort Morgan, Colorado.
Abreu resides in Florida, but claimed to visit Colorado at least twice annually for treatment. He is confined to a wheelchair due to multiple sclerosis. He is also what's known as a "tester," someone who travels across the country and visits businesses to see if they are compliant with current ADA laws. Abreu's lead attorney, Brett Huff from Edgewater, Colorado, did not respond for comment from the Summit Daily.
"When you look at it on the whole, they went after everybody," said Stacy Schonelle, the general manager at Kenosha Steakhouse. "It was a selfish, money-making endeavor."
Schonelle added that to her, it didn't seem like Abreu cared about ADA compliance.
Umphenour's cases largely resemble what are now being called "drive-by lawsuits." The suits hit businesses for accessibility rules within the ADA, which specifies placement of mirrors, signage and parking, among other items. If a building was constructed before 1990, when the ADA was first passed, the businesses are exempt from some of the mandatory modifications if they are not easily achievable or would cost the business undue expenses. Business owners may not have been aware that their location was out of compliance with the ADA before being slapped with a lawsuit.
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Colorado was not the only state Abreu filed suits in. Lindsay Leavitt, an associate at Jennings Strouss law firm in Phoenix, said that he defended businesses against at least a dozen suits filed by Abreu. In the last 18 months, Leavitt has been involved in 300 similar cases in Arizona.
He said that in late 2016, the Arizona Attorney General's office took an unprecedented step by combining more than 1,000 disability access cases that had been filed over a six month period. As of yesterday, a judge dismissed all the cases according to Leavitt. The judge found that the plaintiff, an organization called Advocates for Individuals with Disabilities, did not have standing.
Leavitt said that federally, there are laws in place to help protect businesses from these suits. Plaintiffs must prove that they are likely to suffer upon return to the location.
"There's been some questions whether testers and people like that that go just to see if they can file a lawsuit even have standing to file a lawsuit," he said.
Many of the businesses that were hit with lawsuits in Breckenridge are locally owned. Teryn Guardagnoli, the owner of Modis of Breckenridge said that the restaurant is owned by her and her husband and that most of their extra income goes to after-school programming for their children.
"They're going after small family businesses," she said. "That's the hardest part about it, those are the restaurants where you see the owners on the floor everyday."
The suit against Modis was dismissed by a judge after the plaintiff failed to file under the correct business name. The original suit was filed under Modis of Breckenridge, Inc., which was no longer running the restaurant at the time. The plaintiff missed the deadline to re-file under the correct name.
Guardagnoli said that she felt part of the reason for the mistake was because of the large amount of cases.
"They filed so many cases that they couldn't keep up," she said.
She added that it also made it difficult to communicate with his lawyers as they were trying to make the changes requested.
As a result of the thousands of accessibility cases filed across the country, legislators introduced bills in Congress, such as HR 241, which would require plaintiffs to notify businesses before filing a suit. However, the bill died in Congress after being introduced in early January of 2015. Other bills, such as HR 3765 and 3446 are pushing to allow businesses to correct any details putting them out of compliance with the law before suits are filed. The latter was introduced to the Senate in September of 2016. Leavitt said these bills may help to protect business, while still ensuring that sections of the ADA are being followed.
"My experience has been that none of my clients have purposefully or intentionally been out of compliance. Most of their reasons for not being in compliance are just simply lack of information or lack of knowledge," Leavitt said. "Allowing a small business a chance, giving them notice and opportunity to cure before a lawsuit is filed just generally makes sense for everyone involved."
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