Austin business owners concerned over disability access lawsuits

AUSTIN (KXAN) -- It all started with a thick letter in the mail, for dozens of South Austin businesses this year. We are suing you in federal court for violations of the Americans With Disabilities Act, the letters stated, in essence.

Jose Carranza Sr. said he received that message in a lawsuit mailed this spring to his small, two-aisle gas station. It was unexpected, Carranza said, because he never saw the wheelchair-bound John Deutsch ever come in to his business. No one had ever complained about his access or asked him to fix anything, he said.

“It scared me because I know it’s money we’re going to have to spend and money we don’t have,” said Carranza, who runs the shop with his wife and son.

Jon R. Deutsch
Jon R. Deutsch

His is one of more than 115 businesses sued this year in federal court by Deutsch and his attorney Omar Weaver Rosales.

Carranza said he fixed his access violations following the lawsuit, and most Austin shop owners involved in the ADA cases who spoke to KXAN said becoming ADA compliant is necessary and important. Furthermore, civil rights activists and legal experts largely agree: ADA compliance is a serious issue and lawsuits are often a necessary tool for disabled people to enact change.

But Carranza, along with numerous other business owners, expressed skepticism about the motive behind the lawsuits filed by Deutsch and Rosales. Carranza and others said they received demand letters asking for settlements of up to $7,000. The letter he received also suggested court costs could exceed $100,000 if the settlement offer was not taken.

Other defendants said they were never warned, and they never saw Deutsch.

“I don’t see the fairness in it,” said Roy Henry, a landlord being sued by Rosales and Deutsch. The Mexican restaurant on Henry’s property is less than a mile away from Carranza’s gas station.

25 years in the making

The Americans with Disabilities Act of 1990, signed by President George H.W. Bush, created standards prohibiting discrimination and ensuring access to public services and commercial businesses, according to the law.

“The ADA is a civil rights statute,” said Joe Berra, an attorney with the Texas Civil Rights Project who files ADA lawsuits on behalf of disabled plaintiffs. “The way the ADA works is to create a society where there is no bar to accessibility and people have equal access and opportunities."

During an interview with KXAN, Berra commented generally on ADA law and his own legal work.

The ADA can come in a variety of forms. A deaf person may need a sign language interpreter at a hospital or a disabled public transportation rider may need a lift onto a bus.

For businesses, such as retail shops, ADA law requires certain outdoor features such as, businesses must have disabled parking spots, special van access, minimum widths for ramps and a maximum height for the lip of a threshold at the business’s front door.

Now 25 years removed from the ADA law passage, nearly all construction, even that predating the law, should be in compliance with ADA standards, Berra said. When a disabled person encounters a business that is not ADA compliant, “they feel like it is a sign that says ‘you are not welcome,’” Berra said. Many business owners don’t fully understand ADA compliance, he added. In some cases, business owners may believe that passing a city code inspection means the business is ADA compliant.

The ADA and other accessibility rules can be tough for business owners to fully understand. Owners often interact with city inspectors, the state for certain licensing and the ADA falls in the federal jurisdiction as well.

In some cases, litigation, or the threat of it, is the means of getting ADA compliance, Berra said.

100+ lawsuits

Rosales has sued more than 115 businesses this year, nearly all of them located in South Austin.

The lawsuits hinge on ADA compliance problems on the exterior or entrance of the businesses, including parking spaces, door thresholds and access ramps.

KXAN contacted Rosales numerous times requesting an on-camera interview but he declined to do an on-camera interview and, later, did not reply to questions sent by email. In addition, KXAN sent certified letters to both Rosales and Deutsch requesting interviews. KXAN met Deutsch outside his home, asking to speak with him about the lawsuits. He did not respond.

Jose Carranza Sr. inside his convenience store.
Jose Carranza Sr. inside his convenience store.

Among those being sued by Deutsch and Rosales are roughly 30 restaurants and bars, 18 convenience stores, 15 automotive businesses, five smoke shops, five storage businesses, four banks, four State Farm Insurance agent locations and two pawnshops.

There is no legal limit to the number of different businesses a plaintiff may sue for ADA violations. However, ADA law states the plaintiff must have experienced ADA related discrimination by the business.

KXAN spoke with numerous Austin business owners sued by Deutsch and Rosales. Some owners said they had not seen or met Deutsch.

Carranza’s lawsuit states Deutsch came to the business in April, but Carranza said neither he, his wife nor his son saw Deutsch. Carranza also said photos of his business in the lawsuit do not match the time period they were allegedly taken.

Deutsch and Rosales also sued a Jiffy Lube location just west of Carranza’s store on Ben White Boulevard. A Jiffy Lube representative said the business has no records of the defendant named in the lawsuit at that location during the time period specified.

In the lawsuits, Deutsch alleges he encountered ADA violations at the businesses he has sued.

‘A civil right’

While Rosales and Deutsch only began filing their lawsuits in Austin in June, other groups in Austin have been filing ADA lawsuits for years. The other groups, however, appear to take a different approach than Rosales.

In addition to TCRP, an organization called ADAPT, which is a grassroots disability rights organization, works to improve accessibility issues for disabled people in town.

David Wittie
David Wittie

David Wittie works as a community organizer with ADAPT. Among several endeavors, the group engages in litigation to force businesses to comply with ADA laws.

ADAPT has an annual campaign in conjunction with TCRP on the anniversary of the ADA passage. The groups filed more than 20 lawsuits this year, according to court records. “But that’s only after we’ve gone and talked to a business or written them a letter to let them know about the access issues that we’ve experienced or other people reported,” said Wittie, who uses a wheelchair.

In fact, Wittie said most lawsuits filed by ADAPT are preceded by letters or phone calls to the business asking for fixes. If the business does not fix problems after being asked, a lawsuit could follow.

“I’ve even gone out and talked to business owners to avoid a lawsuit because it takes time. It takes money,” he said.

For example, Wittie said he confronted owners of the thrift shop Treasure City Thrift about the width of the store’s aisles, and the business fixed the issue. At the Saxon Pub, a popular South Austin bar and music venue, Wittie said he actually went and constructed a wooden ramp to use to get into the business. “I reminded them that access is a civil right, and within two months they had a concrete ramp at their entrance at their step."

Wittie acknowledged there is no requirement that a plaintiff send notice prior to suing for ADA violations.

Berra said his nonprofit organization does not file ADA lawsuits for financial gain. TCRP normally notifies businesses before filing a lawsuit against them, and in some cases the organization tries to introduce the business owner to the disabled person that experienced the problem.

TCRP collects attorneys fees, but those fees do not keep the organization afloat, Berra said. The nonprofit firm seeks to make sure compliance issues are fixed, such as a ramp or adjusting parking space lines.

Berra said he thought $5,000 to $7,000 seemed like a reasonable sum for the legal work involved in filing an ADA lawsuit in federal court.

KXAN showed Wittie the demand letter sent to Carranzas. Wittie expressed concern the demand letter could potentially have a backlash effect, if other businesses feel like Rosales’ lawsuits were aimed at getting money rather than getting accessibility for everyone.

“I’ve never seen a letter like this from any of our attorneys since 1997,” Wittie said. “For 18 years, I’ve never seen a letter that was this strongly worded.”

Regarding Deutsch and Rosales’ lawsuits, no business owner with whom KXAN spoke said the plaintiffs contacted them prior to receiving the lawsuit. Many were served by mail, without a warning letter.

The lawsuits are localized in South Austin along major corridors, including South Lamar Boulevard (nearly 50 lawsuits),South First Street (about 20 lawsuits), Ben White Boulevard (17 lawsuits), South Congress Avenue (12 lawsuits), and Oltorf Street (five lawsuits).

KXAN showed Wittie the list of lawsuits. He said several of the businesses were familiar to him.

One business, in particular, surprised him: El Mercado, a Mexican restaurant on South First Street.

“Our organization, ADAPT, has had an annual post holiday celebration [at El Mercado] like with dozens of people with disabilities,” Wittie said. “They’ve always been very accommodating. They have accessible parking. They have a guest room, a room that we eat in. I know we’ve had 40 people in that room, mostly with disabilities.”

‘More profitable than narcotics’

Texas is not the only state where lawyers are filing ADA lawsuits. One California attorney told KXAN that ADA lawsuits have become a major issue in his state.

David Warren Peters said there are people who make significant amounts of money from ADA lawsuits in his state.

Peters is the CEO of the California Justice Alliance, APC Law Firm. California, he said, is home to about 12 percent of the country’s population and 40 percent of its ADA lawsuits.

“I think we are the single largest area on the planet for disability lawsuits of any kind,” Peters said.

Certain laws in the largest West Coast state make filing ADA lawsuits “unbelievably profitable,” he said. Among those laws is a state provision allowing a payment of $4,000 in damages for a violation. In Texas, the state human resources code allows for at least $300 per violation in damages.

“Honestly, this area of litigation has become more profitable than narcotics,” Peters said, regarding ADA lawsuits in California.

Peters said most businesses don’t realize it, but 25 years after the passage of ADA nearly all businesses need to be compliant. Regardless of an attorney or plaintiff’s motives, Peters said ADA laws are crucial to an accessible society, and disabled people should have equal access to businesses and services.

Peters questions whether lawsuits are the best mechanism to enforce ADA law. “The notion of using private lawsuits by individuals as the exclusive means of making our state, or our nation, more accessible to people with disabilities, I think, is just crazy. There are better ways and better approaches.”

Roy Henry, the South Austin landlord of Mexican restaurant Los Jalisciences, said it would not have taken a lawsuit for him to fix his ADA compliance issues. Yet, before being told he needed to make changes, he received notice of a lawsuit and a letter in the mail.

In Henry’s words, he called Rosales and asked what Rosales wanted, and Rosales replied that he wanted ADA compliance. Henry told him the compliance could be done in a week. Then Rosales said there was also “the $5,000,” according to Henry, a retired police officer.

“I said, well, 'I mean sir, is this about compliance, or is this about money?'” Henry said.

Many business owners sued by Duetsch and Rosales have settled outside of court. Henry, however, said he is going to defend himself in court.

The lawsuit claims Roy Henry’s property did not have ADA-compliant, van-accessible parking. (Picture pulled from lawsuit)
The lawsuit claims Roy Henry’s property did not have ADA-compliant, van-accessible parking. (Picture pulled from lawsuit)

This shows changes to parking after the lawsuit. Henry is still fighting the suit. (KXAN News)
This shows changes to parking after the lawsuit was filed. Henry is still fighting the suit. (KXAN News)

 

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