Fed up with abusive practices by some greedy or overzealous so-called advocates of the ADA? We have all seen some deplorable misuse of this statue in the hands of certain plaintiffs and attorneys who literally file dozens of cases at a time leading us to believe that these suits are less about ensuring access for those with disabilities and more about a fee-driven profitable industry. Courts and federal judges alike have had enough. Federal Judges dismiss two ADA lawsuits filed against two Florida Keys properties. The Citizen, Mandy Miles, reports.
Federal judges recently dismissed lawsuits that claimed two Florida Keys properties had violated the Americans with Disabilities Act.
In the orders dismissing the cases, Judges Jose Martinez and Jonathan Goodman also refused to award attorney fees and court costs to Broward County attorney Mark D. Cohen, who has filed more than 800 ADA-associated lawsuits against Florida businesses.
The case against Marquesa Hotel in Old Town Key West was dismissed on Oct. 27, and the one against Bluewater Key RV Resort in the Lower Keys was similarly dismissed two weeks later. The dismissals nullified a settlement hearing that had been scheduled for the Marquesa Hotel case on Friday, Dec. 4 at the federal courthouse in Key West.
Fort Lauderdale attorney Bill Salim represented both properties, with the assistance of ADA expert Bill Norkunas.
Norkunas on Saturday called the dismissals “hugely relevant,” because of the judges’ refusal to award Cohen and his plaintiff Howard Cohan any attorney’s fees or other financial relief.
Norkunas, who himself is disabled as a result of polio as a child, has been on both sides of lawsuits that claim discrimination against people living with disabilities. He has sued hotels for violating the federal law that guarantees equal access for people with disabilities. Norkunas also owns ADA Help, a consulting business that provides expert assistance to businesses facing such lawsuits.
“This sounds self-serving, so please be patient with me,” Norkunas said Saturday. “My ADA expert report to the federal judge was incontrovertible evidence that a pool lift was not required. And defense attorney Bill Salim’s discovery, interrogatories and request for admissions were so detailed and exhaustive; the plaintiff’s lawyer [Cohen] couldn’t possibly win. So they tucked their tails between their legs and filed a motion to dismiss, i.e. a ‘settlement.’ The judge accepted and dismissed the Marquesa case first, then two weeks later the Bluewater Key case.”
Norkunas emphasized the noteworthiness of the dismissals because they were two of the only times in more than 800 cases “that this plaintiff’s lawyer didn’t get paid” attorney’s fees and other court costs.
The majority of Cohen’s ADA-related lawsuits end with a confidential settlement agreement.
Cohen filed suit against the Marquesa Hotel in Key West on July 31, claiming his disabled client, Howard Cohan, was the victim of discrimination because the Marquesa Hotel does not have a pool lift, or other method for disabled guests to enter the hotel pool.
In his complaint, Cohen asked the court to rule that the absence of a pool lift violated the Americans with Disabilities Act. Cohen also asked the judge to “award reasonable attorney’s fees, all costs (including, but not limited to court costs and expert fees) and other expenses of suit to the Plaintiff…and such other and further relief as it may deem necessary, just and proper.”
In his response to the lawsuit, Fort Lauderdale attorney William Salim wrote, “The property at issue does not contain a public pool and all amenities are available for use only by registered guests. At no time did the Plaintiff ever register as a guest at the property and could not have accessed the same.”
Cohen’s similar lawsuit against Bluewater RV Resort claimed the same violations, and Salim’s response to that lawsuit was similar in its denial of the allegations.
“At no time did the Plaintiff ever register as a guest at [Bluewater Key] and could not have accessed the same except by trespassing through the front gate by tailgating when opened by an authorized guest or owner,” Salim wrote in his response to Cohen’s lawsuit against the RV resort. “The plaintiff resides in Palm Beach County according to his complaint and it is unlikely that he has any true intention to return to defendant’s property.”
Attorney Cohen has defended his practice of “serial filing,” saying he is an advocate for people with disabilities.
“We’re all about trying to rectify a problem and help disabled people,” Cohen said Thursday, insisting that the attorney’s fees his office receives as part of the confidential settlement agreements reached with most of the defendants in the lawsuits are “fair, rational and reasonable.”
“We allow time for extensions of the payment of attorney’s fees and we work with people for their settlement,” said Jessica Kerr, an attorney in Cohen’s office. “Most of the attorneys we’ve worked with in the Keys have been amazing to work with and the properties have been willing to come into compliance.”
Cohen was unavailable for comment Saturday.
Elliott Weitzman, an attorney retained by Cohen, estimated in October that the number of cases Cohen settles out of court is in the “high 90 percent range.”
“And the reason they’re settled is not extortion,” Weitzman said, referring to a comment Norkunas made in October about Cohen’s practice of serial filing. “It’s because the defendants’ attorneys feel a settlement is in everyone’s best interest.”
And it often is, Key West attorney Darren Horan said in October. Horan has represented clients against Cohen’s ADA lawsuits and has advised many clients to settle the suits.
“We all know this guy, the plaintiff, didn’t set foot on all these properties,” Horan told The Citizen in October. “But to get through the litigation, to put that guy on the stand, you’re going to cost your client $30,000. And the right thing to do is to install whatever is possible for access for people with disabilities. So any attorney will advise their client to take these on the chin. It’s the cost of doing business. Plus, removing barriers to access will help the business in the long run. If you’re not in compliance with the law, you’re not in compliance. And the way the law is written, there is no remedy for this type of serial filing.”