More than 100 Mesa small business owners showed up for a second meeting Aug. 23 organized by the Mesa Chamber of Commerce to help inform the public of a plethora of Americans with Disabilities Act (ADA) parking lot compliance lawsuits.
Lindsay Leavitt, an attorney with Jennings Strouss & Salmon, specializes in ADA compliance and said there have been 600 to 700 lawsuits filed in the last six weeks since the issue has been highlighted by several media outlets.
“Instead of slowing down they have accelerated,” Leavitt said. “There have been 1,500 parking lot lawsuits filed since February 2016 and David Ritzenthaler has filed 550 of those cases.”
Ritzenthaler is a Scottsdale resident who after hip replacement surgery filed the lawsuits with his attorney, Peter Strojknik, representing Advocates for Individuals with Disabilities Foundation (AID), an advocate group based in downtown Phoenix. Leavitt said Ritzenthaler is no longer filing lawsuits in his name and now sits on the AID board. He added that AID “had to change its name after its first 300 lawsuits because the first name, Advocates for American Disabled Individuals LLC, was offensive to some” and then they became Advocates for Individuals Disabilities LLC before settling on the current AID name.
“They hire independent contractors to file these drive-by lawsuits, to take photos, pull records from the Maricopa County Assessor’s Office and they use a checklist to see if they will sue and they will file regardless of how severe a violation they think it is,” Leavitt told business owners.
He said AID doesn’t answer the phone so the only way you can communicate with them is to email them. Last month, Leavitt told Mesa business owners that if they receive a letter they need to respond immediately by sending an email to email@example.com saying, “I received your letter and if there are any violations I intend to bring my property to compliance.”
Leavitt said that since you can’t contact AID by phone people think it’s easier to settle, but if they say they can’t pay the amount AID’s initial letter asks for they have what he calls “form settlement letters” and counter the first letter with a lower negotiated price.
“It feels like you’re haggling over a new car,” Leavitt said. “Once a settlement is reached the case is dismissed. Under ADA lawsuits a plaintiff is entitled to attorney fees and costs, not damages, and the attorneys for AID refuse to disclose statements (of how much their attorney fees are). It’s $100 cheaper to file in state court as opposed to filing in federal court.”
Leavitt said AID has sent out 42,000 notices to businesses so far and that the three things they are highlighting are not totally accurate.
“It feels like we have to educate them on ADA law,” Leavitt said. “Their interpretation of the law we feel is incorrect. Ninety-five percent of the cases are allegations of signage violations so I am recommending to my clients to go 70 inches high because the 60 inches is so close and there is no room for interpretation.”
Many of the violations noted involve signage and van accessibility. ADA compliance states that each ADA compliant accessible parking space must be properly marked with the international symbol of accessibility on a reflective sign and that the bottom of that sign must be a minimum of 60 inches above the ground.
As for van accessibility, there must be an appropriate number of properly marked accessible parking spaces that are labeled “Van Accessible” and they must be the correct size and the appropriate location in order to allow for a van to load or unload those with disabilities.
There is a “Safe Harbor Provision,” which is like a grandfathering clause and says that businesses don’t have to comply if they’ve repaved or restriped, or completed any other alterations to their parking lot before the latest 2010 standards went into effect in 2012.
“If you drive around Mesa you can see those who have been sued because their signs are much higher,” Leavitt said, adding that some business owners don’t understand why they are being sued by AID because they passed city inspection.
“Mesa has its own city accessibility requirements but federal law trumps city law and that’s what’s irritating,” Leavitt said.
David G. Campbell, a federal judge for the United States District Court for the District of Arizona, has publicly noted that Ritzenthaler has been open on the fact that he hasn’t even visited any of these locations he’s filed lawsuits against.
“This is a ruling I’ve been waiting for to order plaintiffs to prove to the judge why his legal analysis in incorrect,” Leavitt said, adding that he’s meeting with Sen. Jeff Flake Aug. 24 to try and “come up with some common sense laws.”
Arizona Restaurant Association’s Partnership and Industry Relations Manager Brynn Johnson has also become involved with the situation.
“We started getting a trickle-down effect and we’re putting together a list of experts and checklists to help our members,” Johnson said. “We are making sure we’re communicating to the restaurant and bar community and provide resources and help them assess and fight these issues.”
Kathy Rosko, with Tempe-based Victoria Properties Management LLC, said she has spent $59,000 so far on ADA alterations for her clients hit by these drive-by lawsuits.
“I have 12 properties and this is not in the budgets,” she said. “That’s why so many have given them (AID to settle lawsuits out of court) $8,000 to go away. What is the attorney general doing and why did it take 2,000 lawsuits for him to notice?”
Lobbyist Eric Emmert, with Dorn Policy Group LLC, agreed that Arizona needs to come up with “legislation that’s a win-win for everyone and eliminates these drive-by lawsuits.” He added that he’s encouraged that the Arizona Attorney General’s Office is now looking into the situation and feels that something will come down from that office soon.
Rosko said she is not satisfied with the Arizona Legislature “who has done nothing.”
Emmert agreed with Rosko that “it’s accurate to say they didn’t get anything done, but it blew up so fast.”
Leavitt added that it’s no coincidence that the AID lawsuits were filed mostly while the Legislature was out of session. He told Rosko when she asked if anyone is consolidating cases that he does have 17 clients who have banned together to fight the lawsuits and they are dividing his fees.
“We are trying to get a ruling from the judge that these are frivolous lawsuits,” he said, adding that the helpful judge is David M. Talamante, the southeast presiding/family judge for the Maricopa County Superior Court in Arizona.
– Kelly Mixer is managing editor of MyNewsMesa.com. Reach her at firstname.lastname@example.org.