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The Honolulu Advertiser
Posted on: Wednesday, November 19, 2003

ADA lawsuits are troubling

By David Shapiro

As a disabled person who uses a wheelchair, I'm troubled by the spate of lawsuits being filed against Hawai'i small businesses for alleged violations of the Americans With Disabilities Act.

This landmark civil rights legislation has vastly improved the lives of millions of people with disabilities by expanding our job opportunities and access to public facilities. It's difficult to muster sympathy for businesses that remain inaccessible 11 years after the ADA passed.

But these lawsuits contribute little toward making Hawai'i more friendly to disabled people. Mostly, they enrich lawyers and select plaintiffs while breeding hostility toward the disabled and the law.

Litigation should be a last resort in resolving problems, but in many of these cases, trigger-happy lawyers file ADA lawsuits with little effort beforehand to gain compliance without suing. One attorney has sued more than 100 businesses on Kaua'i in two years.

The lawsuits target some of Hawai'i's most vulnerable businesses that operate out of old buildings on razor-thin profit margins, often with owners who speak limited English.

An attorney frightens business owners with demands for extensive ADA renovations, then offers to settle out of court for a few thousand dollars if the business agrees to make relatively minimal ADA improvements and pay attorney's fees of up to $2,500 and up to $1,000 in penalties to plaintiffs, who've sometimes never even patronized the business.

Legal fees can exceed the amount spent to enhance accessibility, a wasted resource.

ADA lawyers claim the law provides no redress other than lawsuits, but that isn't entirely true. Complaints could be filed with the U.S. Justice Department, but there are no attorney's fees in that.

Organizations like the Hawaii Disability Rights Center tackle the problem correctly by offering businesses a conciliatory path to ADA compliance and affordable solutions. Legal action isn't considered unless a business fails to address violations within three to six months.

The ADA makes clear that new construction and major renovations must be fully accessible to the disabled. But small businesses in older buildings get little guidance on what is expected of them. Vague language requires removal of structural barriers when it is "readily achievable, ... easily accomplishable and able to be carried out without much difficulty or expense."

Businesses can diminish the onslaught of lawsuits by banding together to retain their own lawyers and consultants to challenge some of the litigation and negotiate better settlements that reduce attorney's fees and penalties.

The last place plaintiffs' lawyers want to end up is in court, where they have to put in serious hours that federal judges are notoriously stingy about paying for.

More importantly, businesses must become proactive and work with reasonable groups like Hawaii Disability Rights Center to correct their ADA problems before they are sued. It won't make them immune to lawsuits, but the act of good faith will go a long way with judges if complaints get to court.

ADA lawyers say failure to immediately make all businesses fully accessible to the disabled is a civil rights violation on the same order as hanging out "whites only" signs, but it's not that simple.

To let minorities in, the owner need only extricate his head from his okole and take down the sign.

To let me in, he may have to build a ramp, widen his door, rearrange his shelves and aisles, raise his tables and make expensive renovations to his restrooms.

Even if the law permits me to be a hard case about it, we're all better people if we look for fair resolutions before bringing in the lawyers.

David Shapiro can be reached at dave@volcanicash.net.