Several “drive-by” ADA lawsuits filed against Breckenridge businesses
May 17, 2016
Several Breckenridge restaurants were hit by disability lawsuits filed by a Florida man over a four-month period.
Plaintiff Santiago Abreu, of West Palm Beach, Florida, filed at least eight complaints against local restaurants, including the Hearthstone, Downstairs at Eric's and Kenosha Steakhouse, in the U.S. District Court of Colorado between November 2015 and February 2016.
"We've been scrambling to try to help our members out there," said Carolyn Livingston, communications director for the Colorado Restaurant Association, of which several of the defendants are members. "It's interesting because they always seem to target historic towns that rely heavily on tourism."
Breckenridge isn't the only town that has been hit by what some call "drive-by" lawsuits, filed by "testers" who visit businesses to see if they are in compliance with the Americans with Disabilities Act. Abreu has also filed complaints in Arizona, Florida, Durango and Telluride, most recently.
"Completely independent of his personal desire to have access to this place of public accommodation free of illegal barriers to access, Plaintiff also acts as a 'tester' for the purpose of discovering, encountering and engaging discrimination against the disabled in public accommodations," each of the lawsuits noted.
Abreu, who is confined to a wheelchair for his multiple sclerosis, was described as a "parapetic" who travels to Colorado about twice per year.
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The complaints against each business run the gamut from the broad (failing to provide a clear path of travel through the facility) to painstakingly specific (a bathroom mirror that is one inch too high). The majority, however, focused on access — no stairs or ramps were listed, for example.
"It's certainly opened a lot of eyes in the community in how the law works. In one sense, the lawsuits are useful, but in another sense, they're very, very expensive for such minor infractions," said Kenneth Nelson, president of the Breckenridge Restaurant Association and owner of several local restaurants. "It's pretty easy pickings when you're talking about a mirror that's two inches too high or a missing handrail. Most businesses have something that's missing."
From his point of view, the devil is in the details. Experts can interpret height requirements for countertops, sinks and toilet paper dispensers differently.
"At Park and Main, we had to move the toilet paper dispenser three times to get it at the right height," he recalled, noting the discrepancy delayed the building's opening by one day.
Passed in 1990, the ADA was intended to allow individuals with disabilities access to all of the products and services offered to the able-bodied. Approximately 43 million Americans have one or more mental or physical disability, and this number is expected to increase with an aging population.
"It's just prolific. Everywhere you go, these places don't have access for people in a wheelchair," said attorney Brett Huff of Edgewater, Colorado, lead counsel for Abreu's case. "The bars are typically not right. There's nowhere for you to go and have a drink. All these things have to be corrected."
As the law is currently interpreted, businesses constructed after 1990 are expected to be in full compliance, and any modifications or additions are also expected to be compliant. If a building was constructed prior to ADA, the plaintiff must prove the modifications are "readily achievable" and will not cost the business undue expense to modify. For example, putting an elevator in a building would be a high-cost item, but painting an accessible parking space is relatively cheap.
"Demonstrating that an existing facility has not done something that is readily achievable is not easy," said Kevin Williams, legal program director with the Colorado Cross-Disability Coalition. "They have to bring in witnesses to demonstrate there would not be much difficulty or expense to make the changes. … Now, if it's a new building and it's out of compliance, it's a no-brainer."
Most of the Breckenridge restaurants listed in the lawsuits fall under the pre-1990 category, with several Victorian-era buildings in the town's historic district. The building that hosts the Hearthstone dates back 120 years, and Angel's Hollow was originally constructed as a post office in 1961.
However, for the smaller, cheaper fixes, older buildings are not exempt. The penalties are substantial, at a maximum of $75,000 for the first violation and $150,000 for each subsequent violation. While the ADA does not specifically afford plaintiffs monetary damages, Colorado law entitles plaintiffs to about $500 in damages.
For a plaintiff to file a lawsuit, they must also demonstrate they are likely to use the facility again. Though Abreu lives full-time in Florida, the lawsuit specifies he visits Colorado occasionally for treatment.
"It is our goal to make the restaurant and other industries aware of the hardships imposed by their failure to comply with this extremely important federal law," Huff added in a written statement. In sum, these cases are being filed to enforce the law and protect and enhance the lives of disabled Americans from the pervasive and on-going discrimination that they face when simply trying to go to a restaurant for a meal."
The attorney for some of the defendants, Tim Murphy with Hall and Evans, declined to comment on the cases while they were still pending.
One of the main complaints small business owners have raised in light of the serial tester lawsuits is the lack of advance notification prior to a complaint being filed.
"It's a sensitive subject. In the hospitality industry, we certainly don't want to make people feel unwelcome any way," Nelson said. "But, if individual facilities have issues, and that businessperson doesn't know about it, I don't fault them for not knowing to get it done or corrected."
From his point of view, the cost of correcting most of the complaints would be much less than the cost of settling — at about $10,000, in most cases.
"Unfortunately, it can hit a small business person really hard," he added. "If that was $10,000 you needed to save to do something with, now you can't. Nobody wants to lose that kind of money to something they could have avoided."
Chris Green, an Avon-based architect and owner of Ago Studios Inc., said businesses can easily find ADA guidelines on the web. For the smaller details, he suggested bringing in a design professional.
"It's a little tough if you're not familiar with ADA to take the time to look at it, but, once you do, it's fairly straightforward," Green said. "Some of these things are pretty easy to fix."
While most of the current lawsuits are against members of the Breckenridge Restaurants Association, Nelson noted the cases were being tackled on an individual basis. Ultimately, he said most of the restaurateurs did not view Abreu as an adversary by the time the proceedings were underway.
"It's shocking when it first happens because you feel kind of threatened," Nelson said. "The plaintiff is not the bad guy."
In light of the numerous "drive-by" lawsuits nationwide, legislators proposed two bills in Congress this session: HR 241, which would require plaintiffs to give businesses notice of the issue prior to filing a complaint, and HR3765, which would give businesses the "right to cure" the issue within 120 days of notification.
However, Williams, of the Colorado Cross-Disability Coalition, does not think these bills would be a perfect solution.
"Why should you write a letter to a facility when the law's been in effect for 26 years?" he said. "We're strongly against the concept of notification because (businesses) are already on notice. … It gives them an incentive not to comply until they get a letter."
From his point of view, the courts should dismiss any frivolous cases based on unfounded complaints. However, if the defendant settles, the issues are never investigated.
"It sounds really fishy when somebody from out of state files complaints with all of these facilities," he said. "I'd like to put an end to what's going on because we think it puts a bad name to the ADA and the work we're trying to accomplish."
Clarification: A photo published with this story implied Modis was suied by Santiago Abreu. A lawsuit was filed against Modis of Breckenridge, Inc. in December of 2015, which was no longer the corporation managing the restaurant at the time of the complaint.