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Title III Defense - Disability (Premises Liability)

The Title III Defense Disability Practice Group is involved in litigation relating to lawsuits brought under Title III of the Americans with Disabilities Act against landlords, tenants, and/or business owners. These suits are typically brought by an individual claiming to be disabled and/or a "tester" for an "organization" that purports to advance the rights of the disabled, often the "organization" to which he belongs. In reality, a significant number of these lawsuits are frivolous and the plaintiff often times is not a regular patron of the business that is being sued, which is a prerequisite to the plaintiff' ability to demonstrate that he has legal "standing" to bring and maintain the lawsuit. Often, plaintiffs bringing these suits are "serial" plaintiffs who are really vexatious litigants, and should be exposed as such.

The suits are brought with the intention of the plaintiffs to settle them immediately (before their frivolous nature is revealed) and before the plaintiff' attorney has to do any work on the case, so the attorney' fees are obtained without the expenditure of work. The plaintiffs sometimes look to settle these cases for fees disproportionate to the amount of legal work performed, plus a promise by the business owner/tenant/landlord to bring certain parts (but not all) of the property in "compliance" with the ADA, and the settlement agreement typically requires the various areas to be "fixed" by a certain date with a provision allowing for the plaintiff to receive attorneys' fees if he has to enforce the agreement (meaning if the property is not fixed by the date called for in the agreement). When a suit is settled in such a manner, the plaintiff' attorney receives legal fees disproportionate to the amount of work performed, and the defendant who was sued has a property subject to a settlement agreement that if he does not comply with it he is subject to being sued to enforce it, and even if he does comply with it, he is subject to being sued by another such plaintiff, because typically only some of the areas of the building not in compliance are "fixed" as part of the settlement.

The issues that are typically litigated in these types of cases are whether the plaintiff is truly disabled as defined by the statute, whether the plaintiff has standing to bring suit against the entity or person sued (that is, whether the plaintiff is a regular patron of the business), whether the plaintiff has standing to sue to rectify specific alleged barriers to the plaintiff' access to the facility (plaintiffs often bring suit claiming that numerous alleged barriers to access exist, e.g., that a bathroom is not compliant with the statute, but the plaintiff' access was not affected by the alleged barrier, e.g., if the plaintiff never attempted to use the bathroom, whether the barriers to access have been fixed (a business owner, tenant, and/or landlord may fix all of the alleged barriers to access which has the legal effect of mooting out the suit brought by the plaintiff which should lead to dismissal of the suit), and with regard to any alleged barriers to the plaintiff' access to the facility that are not fixed, whether the plaintiff can show that the alleged barriers to access are "readily achievable" from an economic standpoint. The "readily achievable" standard applies to buildings built before 1992, while buildings built after 1992 must strictly comply with the statute.

The key to defending these cases sensibly with the client' best interests in mind is to litigate them by raising and litigating the defenses identified above, while keeping that litigation inexpensive by reusing pleadings and research previously drafted for other cases, which our firm does.

List of Representative Clients:  The Old Heidelberg , The Old Heidelberg Deli, The Hut Lounge, Inc., and Boca Bargoons, Inc.

List of Representative Cases:

          • Campbell v. Moon Palace, Inc., 2011 WL 4389894 (S.D. Fla., Sept. 21, 2011)

In this case, the Defendant is a Chinese restaurant that has been in business for approximately twenty-five (25) years and had never been sued before.  The Plaintiff had brought many lawsuits under Title III of the ADA, and thus appeared to be a serial plaintiff.  During his deposition, it was established that with respect to many of the suits the Plaintiff brought he could not say that he patronized the businesses, but also he readily admitted that he had never even heard of many of the businesses.  In particular, with respect to the Defendant, the Plaintiff admitted that he had only been to the restaurant on one previous occasion, that he liked other restaurnats better and in particular other Chinese restaurants, and that he seldom travels near the Defendant, and thus could not say that he was going to patronize the restaurant in the future.  Consequently, the firm moved for summary judgment on several grounds, including that the Plaintiff cannot prove that he has standing to sue, because he cannot say that he will patronize the restaurant in the future.  The court granted summary judgment, finding that the Plaintiff lacked standing to bring the suit.  Accordingly, final judgment was entered in favor of the Defendant against the Plaintiff.  Unfortunately, many of these Title III suits, like this one, are being brought by individuals and lawyers even though they are aware that the Plaintiff has not been a regular patron of the business, and does not intend to be a patron in the future.  This opinion was reconsidered.

          •  Bado v. Alster Trading, L.L.C., d/b/a The Old Heidelberg Deli, Case No. 10-61774-PCH (S.D. Fla.)

In Alster Trading, L.L.C. , an Amended Complaint was filed [D.E. 13], and the plaintiff hired an expert witness. [D.E. 21]. Alster Trading, L.L.C. filed a motion for summary judgment on several grounds; namely, that: 1) the plaintiff was not disabled (he did not need to use a wheelchair); 2) the plaintiff had no standing to sue, because he had only patronized the establishment once in the last four years; 3) the plaintiff was a vexatious litigant who had filed approximately 35 lawsuits in the past year, and had sued many businesses and building owners even though he was not patronizing those businesses or buildings; 4) the case should be dismissed because the plaintiff' attorney was unethically splitting his fee with the plaintiff; 5) any alleged violations that were barriers to the access of the plaintiff were fixed; and 6) the alleged barriers to access were not readily achievable to fix. [D.E. 32, 33]. The court required the plaintiff and his attorney to disclose (through a court filing) the exact amounts in the 35 lawsuits that they had filed in the last year of attorneys fees that they obtained and how much money the plaintiff was receiving for each suit when it was settled; the attorneys fees averaged around $10,000 and the plaintiff was receiving a lump sum of $1,800 to $1,500 per lawsuit. [D.E. 51]. The court then held a hearing and suggested that it was going to dismiss the case and require the plaintiff to pay back all monies received in the 35 cases, and the plaintiff and his attorney therefore agreed to dismiss the lawsuit. [D.E. 57, 59]. The plaintiff and his attorney were concerned enough that they dismissed all pending cases that they had together at the time. See, e.g., Bado v. The Hut Lounge, Inc., Case No. 10-62285-JEM [D.E. 12, 13].

•  Bado v. German Specialty, Inc., d/b/a The Old Heidelberg, Case No. 10-61775-PCH (S.D. Fla.)

In German Specialty, Inc, a Complaint was filed [D.E. 1], and the plaintiff hired an expert witness. [D.E. 38]. German Specialty, Inc. filed a motion for summary judgment on several grounds; namely, that: 1) the plaintiff was not disabled (he did not need to use a wheelchair); 2) the plaintiff had no standing to sue, because he had only patronized the establishment once in the last four years; 3) the plaintiff was a vexatious litigant who had filed approximately 35 lawsuits in the past year, and had sued many businesses and building owners even though he was not patronizing those businesses or buildings; 4) the case should be dismissed because the plaintiff' attorney was unethically splitting his fee with the plaintiff; 5) any alleged violations that were barriers to the access of the plaintiff were fixed; and 6) the alleged barriers to access were not readily achievable to fix. [D.E. 50, 51]. The court required the plaintiff and his attorney to disclose (through a court filing) the exact amounts in the 35 lawsuits that they had filed in the last year of attorneys fees that they obtained and how much money the plaintiff was receiving for each suit when it was settled; the attorneys fees averaged around $10,000 and the plaintiff was receiving a lump sum of $1,800 to $1,500 per lawsuit. [D.E. 51 in Bado v. Alster Trading, L.L.C., Case No. 10-61774-PCH]. The court then held a hearing and suggested that it was going to dismiss the case and require the plaintiff to pay back all monies received in the 35 cases, and the plaintiff and his attorney therefore agreed to dismiss the lawsuit. [D.E. 57, 59]. The plaintiff and his attorney were concerned enough about the splitting of attorneys fees that they dismissed all pending cases that they had together at the time. See, e.g., Bado v. The Hut Lounge, Inc., Case No. 10-62285-JEM [D.E. 12, 13].

•  Bado v. The Hut Lounge, Inc., Case No. 10-62285-JEM (S.D. Fla.)

In The Hut Lounge, Inc., a Complaint was filed [D.E. 1], but when the plaintiff' attorney learned (in the deposition of plaintiff in Bado v. German Specialty, Inc., Case No. 10-61775) that the plaintiff had not entered a sports bar in over ten (10) years (and The Hut Lounge, Inc. is a sports bar), he immediately dismissed The Hut Lounge, Inc. (the tenant and business owner) from the case and added the party Southern Centers at Galleria, L.L.C. (the landlord). [D.E. 8, 9]. The case was dismissed against Southern Centers at Galleria, L.L.C. when the plaintiff and his attorney decided to dismiss all pending cases after the difficulties they encountered in Bado v. Alster Trading, L.L.C., d/b/a The Old Heidelberg Deli, Case No. 10-61774-PCH.

•  Access for the Disabled v. Boca Bargoons, Inc., Case No. 05-80386-ASG (S.D. Fla.)

In Boca Bargoons, Inc., a Complaint was filed [D.E. 1], and after a period of time, the defendant agreed to settle the case with the court deciding attorneys' fees and costs. [D.E. 28, 29]. Meanwhile, the building burned to the ground, and it appeared that the case became moot. The plaintiff filed his motion for attorneys' fees seeking an exorbitant amount of attorneys fees [D.E. 30, 37], but when it was pointed out that the suit was moot because the building burned down, and that the plaintiff was a vexatious litigant, the attorneys' fee issue was easily settled between the parties.