Disability lawsuits target 100 Kaua'i businesses

By Dan Nakaso
Advertiser Staff Writer

Lawsuit No. 28 this year against a Kaua'i business over Americans With Disabilities Act regulations was aimed at Pam Chock, whose emotions raced from surprise to anger.

Honolulu attorney Lunsford Phillips says he visits every business before filing lawsuits and after repairs are completed. Deborah Booker • The Honolulu Advertiser

Chock and her business, in fact, were honored in 2002 as Hawai'i's Employer of the Year by the state Department of Human Services for their efforts to hire disabled employees. The award gave the lawsuit against Kaua'i Fruit and Flower a particular irony, but otherwise, Chock finds herself in the same position with more than 100 other businesses on Kaua'i facing nearly identical federal ADA lawsuits.

Chock's lawsuit was just one of 49 filed this year by the same person, Juliette Pasion, and her Honolulu attorney, Bruce Sherman. Pasion has muscular dystrophy, uses a motorized wheelchair to get around Kaua'i and, since September 2001, has filed more than 100 lawsuits alleging violations of the ADA.

The lawsuits have generated a backlash on Kaua'i against the Americans With Disabilities Act and magnified a similar flurry of ADA lawsuits filed on O'ahu by attorney Lunsford Dole Phillips, who has sued hundreds of Honolulu businesses from strip clubs to strip malls in the past few years.

But much of the anger from business owners overlooks a critical fact in the debate: Businesses in Hawai'i, for the most part, have failed to comply with the ADA in the 12 years since it took effect.

There can be a long list of violations in just a single business, especially those in older buildings: narrow doorways, bathrooms that don't allow for a 5-foot turning radius for wheelchairs, aisles that aren't wide enough, and an absence of wheelchair ramps or parking spaces for the disabled.

"There are a lot of problems out there," said Francine Wai, executive director of the state Disability and Communication Access Board. "It's fair to say that probably all of the places that have been sued don't meet the guidelines."

Suits hit bars, clubs

During the past few years, he's gone from suing major Hawai'i shopping centers, resorts and hotels over ADA violations to more recent lawsuits against hostess bars, plate lunch restaurants and strip clubs frequented by a client, Dale Marczak of Waipahu.

"If it was my choice," Phillips said recently after inspecting a bathroom in a Japanese restaurant, "I'd be suing the fanciest restaurants in town. ... I'd much rather spend my time in high-class places."

Bitter feelings of business owners on O'ahu and Kaua'i over the lawsuits have led to accusations about the motives of the plaintiffs and their lawyers. Phillips and Sherman tend to settle the cases after billing about 10 hours of work — Phillips charges $250 per hour; Sherman, $225.

Settling an ADA lawsuit can cost thousands of dollars in construction bills and lawyer fees. Lawyers also use a state law allowing their clients to receive penalties imposed on noncompliant public places that can amount to up to $1,000.

But a settlement doesn't give what Wai calls "a Good Housekeeping Seal of Approval" and will not prevent future suits from different plaintiffs and lawyers.

"It is true that the ADA is not a building code," Wai said. "Many businesses want an official inspection, like an OSHA inspection or a building inspection, but that mechanism does not exist under the ADA. There are businesses who have done something and are still getting sued because the ADA doesn't preclude you from getting sued multiple times."

And so the number of lawsuits continues to grow in federal court in Honolulu.

"I lost track at the 108 mark," said Honolulu attorney David Lum, who has defended about a dozen Kaua'i businesses sued by Pasion and Sherman.

"The only true similarity is they've all been targets of Miss Pasion's lawsuits," Lum said. "Other than that, some are hairdressers, some are family-run stores, some are corporations."

While other defense attorneys said their clients paid as little as $3,000 for minor repairs, lawyers' fees and the state penalty, Lum said "that seems low. I've come across cases that are many times that."

Considerable anxiety

No one tracks how much ADA lawsuits have cost local businesses or whether Hawai'i is out of line with other states in the number of complaints filed.

What's clear is even before they're settled, the lawsuits have triggered considerable anxiety.

"Defendant alleges that what the plaintiff and her attorney, Bruce F. Sherman, are doing by driving around the island, seeking out their 'prey' without approaching the owners or managers with a complaint prior to filing lawsuits is tantamount to misconduct," wrote Linda Dyche, who represented herself in the suit that Pasion filed against her Carving Stone Ohana Bar and Grill in July.

"Defendant has suffered great mental duress as a result of this wrongful lawsuit and ... has suffered from stress-related illnesses as a result."

Dyche did not return telephone calls from The Advertiser.

When she lived in Honolulu, Pasion served on state and local groups working to increase disability access and co-hosted a local cable television show on disability issues.

In 1995, she returned home to Kaua'i after retiring from the Department of Treasury and was disappointed that businesses did not seem to take the ADA seriously.

For years, Pasion said, she asked Kaua'i business owners to make their stores, shops and operations more accommodating.

Each time, Pasion said, she was ignored. Even two Kaua'i medical offices said they would not deal with patients who use wheelchairs, Pasion said.

"Going into a grocery store on a rainy day, you'd have a makeshift, so-called ramp leading up the grocery store that was too steep and slippery," Pasion said. "I guess everybody accepted it. To me, that was just dangerous."

Finally in 2001, Pasion felt that no one was listening to her and nothing was being done.

"Enough was enough," Pasion said. "What makes Kaua'i any different from anywhere else? This is a federal mandate."

Sherman, Pasion's attorney, said the goal is to make Kaua'i more accessible to people with disabilities.

"It's not our intent to put anyone out of business," he said. "There are certain mom-and-pop businesses you can look at and understand that they are hand-to-mouth. I understand a lot of these businesses are angry about this. But at this point in time, who do they have to blame but themselves?"

'Quick settlement' desired

Kaua'i attorney Patrick Childs represents the business interests of several companies that have been sued and they dispute that Pasion requested changes or even tried to get in.

"This is a small island," Childs said. "Everyone knows what this woman looks like, and they have no remembrance of this woman attempting entry. This, in my opinion, is pretty much about money. What they want here is a quick settlement."

The spate of lawsuits, Childs said, "has not done anything for the reputation of attorneys. And I doubt it's done anything for the reputation for the handicapped."

Phillips insists that he visits every business before filing suit and again after repairs are completed.

The process can take months. Several defense attorneys said they appreciated Phillips' willingness to suggest low-cost ways to comply with the ADA.

Phillips recently spent 30 minutes inspecting Restaurant Kuni and Kuni's Lounge in Waipahu where the bathrooms and the eating areas don't meet ADA standards. The owner, Kuniomi Uehara, and his contractor friend, Harry Noguchi, worried that the repairs could run into the tens of thousands of dollars.

"Don't break out in a sweat," Phillips told them. "I appreciate your attitude. But this is not supposed to be a crisis."

Robert Kohn, who is representing Restaurant Kuni and Kuni's Lounge, said Phillips is "quite flexible and reasonable. He's very aware that you can't ask a small business to do expensive things."

Similar feelings don't seem to have spread to Kaua'i.

Chock, the employer of the year, has two workers with disabilities and takes the lawsuit against her flower business personally.

"I truly want to see more disabled people in the workforce," Chock said. "But how is this going to help?"

Reach Dan Nakaso at 525-8085 or dnakaso@honoluluadvertiser.com.