Foils ‘Cottage Industry’ Created
By Disabilities Act
Florida Judge Bounces Frivolous ADA Lawsuit
by Steven John Fellman
NATO Washington Counsel
In a scathing opinion,
U.S. District Court Judge Gregory A. Presnell entered
a judgment for the defendant and assessed
costs against the plaintiffs in a Florida Americans With
Disabilities Act (ADA) lawsuit (Jorge Luis Rodriguez v.
Investco L.L.C., Case No. 6:02-CV-916-ORL-31KRS, U.S. District
Court for the Middle District of Florida, Orlando Division).
The plaintiff, Jorge
Luis Rodriguez, is a paraplegic. In
the past few years, he has filed almost 200 lawsuits
against various establishments alleging ADA violations.
In most
of these cases, Mr. Rodriguez was represented by the
same counsel, William Charouhis. Presnell characterized
the
plaintiff as a professional pawn in an ongoing scheme
to bilk attorney’s fees from defendants and dismissed
the case.
Rodriguez sued the Sandy
Lake Towers Hotel. He alleged that he stayed at the hotel
in May 2002 and that the
hotel’s
rooms and public areas did not meet the requirements
of the ADA. Defendant Investco purchased the Sandy
Lake Towers
two months later by foreclosing a mortgage given to
the prior owner, who was in bankruptcy. Investco acquired
the
hotel to convert it into a timeshare community and
thereafter manage it.
The hotel had two 18-story
towers, a clubhouse, and surrounding grounds. Prior to
the acquisition, Investco
developed
preliminary plans to make the property ADA compliant.
Renovation of
Tower One was scheduled in two phases: (1) the top
floors 10 through 19 and (2) the bottom floors two
through nine.
Building permits were obtained and the top nine floors
of Tower One were vacated. Rooms on the lower floors
were being rented during the renovations.
At the time the lawsuit
was filed, the plaintiff named the facility’s former
owner, who at that time was in bankruptcy, as the defendant.
After learning that Investco
had acquired the hotels, the plaintiff amended
the complaint to name Investco as the defendant.
The judge began his legal
analysis by examining ADA litigation in South Florida.
He stated that
passage
of the ADA has
precipitated “a cottage industry” and “has
resulted in an explosion of private ADA-related litigation.
For example, in this district alone, there have been hundreds
of Title III cases filed in the past three years. These
cases have been filed by a relatively small number of plaintiffs
(and their counsel) who have assumed the role of private
attorney’s general.” He noted that 579 cases
had been filed by only five organizations. Plaintiff Rodriguez,
represented by Charouhis, filed 11 individual cases in
the Middle District of Florida. Charouhis has been counsel
in 75 cases in this district during the past three years.
According to the court, in 27 of Mr. Charouhis cases, the
court has had occasion to issue 33 “show cause orders” for
Charouhis’ failure to abide by the court’s
orders.
The court described the
fact that ADA plaintiffs are not entitled to damages,
but ADA counsel
are entitled
to attorney’s
fees. The judge stated “the current ADA lawsuit binge
is, therefore, essentially driven by economics – that
is the economics of attorney’s fees.” The Judge
looked at the testimony that was presented at trial. In
his opinion, the judge stated:
“At trial, plaintiff
did not establish that ‘he is
being subjected’ or ‘is about to be subjected’ to
prohibited discrimination by defendant. Defendant did not
own the facility at the time plaintiff stayed there. More
important, is plaintiff’s lack of a continuing connection
to the facility. At trial, plaintiff was evasive and willfully
ignorant, totally lacking credibility. His explanation
for his initial visit to the facility was disingenuous,
and he did not convey any honest desire to return there.
Plaintiff’s testimony left the distinct impression
that he is merely a professional pawn in an on going scheme
to bilk attorney’s fees from defendant.”
The court found that
Investco had without question purchased a facility that
was not
compliant
with the ADA. However,
Investco had taken all required steps under
the statute to implement a plan to bring
the facility
into compliance.
Investco had acted reasonably to remove
barriers to access and plaintiff had not been injured.
Accordingly, the
court not only dismissed the case against
the defendant, but
assessed costs against the plaintiff.
The “cottage industry” of spurious ADA lawsuits
is clearly shut down in Judge Presnell’s courtroom.
Theatre owners who may be sued by this type of plaintiff
should vigorously defend the action. 
