ADA claimants find courts less friendly these days 

It’s bad enough for Charlotte’s commercial real estate industry. Lenders aren’t lending. Vacancies are still high.

And then there’s the ongoing problem of lawsuits alleging that shopping centers, office buildings and industrial parks are violating the Americans with Disabilities Act.

Such suits are nothing new. Industry officials in the Charlotte area have been complaining about them since at least 2009.

The lawsuits don’t appear to be going away. But according to those involved in such cases, more people being targeted by the lawsuits are fighting them rather than just settling out of court. That some judges have moved to dismiss some cases for lack of standing is likely encouraging property owners and tenants not to back down as much as before.

“I think in the last year the trend has emerged in which these businesses decide to fight,” said Bryan Adams, an attorney with Charlotte-based Van Hoy, Reutlinger, Adams and Dunn.

Here’s how the lawsuits originate, attorneys say: Somebody — sometimes a person from another state — comes to an area on a scouting trip to find violations of Title 3 of the ADA.

Those suing claim that the business owner, property owner or even a tenant failed to make the building accessible to people with disabilities. The suit points to various allegations, such as a lack of wheelchair ramps or problems with curb heights and toilets.

A bunch of commercial properties might be targeted in one scouting trip, resulting in a slew lawsuits filed almost simultaneously, those familiar with the cases say.”

“It is troubling because some folks out of Florida, usually Miami or Fort Lauderdale, come up and file a lawsuit claiming their rights under the ADA have been violated,” said John Bowers, a lawyer for Charlotte law firm Horack Talley.

Bowers is among attorneys who have been hired to defend two clients in the Charlotte area dealing with ADA lawsuits. He would not disclose their names.

In one case, Bowers said he defended a client against Denise Payne. The judge dismissed the case for lack of standing, saying Payne was not from the Charlotte area, Bower said. He declined to name the defendant in the case.

Payne has filed suits across the country, claiming properties, from restaurants to shopping centers to hotels, run afoul of the ADA. Florida, Pennsylvania and Virginia are among states where she’s been involved in such lawsuits.

Adams said he’s defending Park Road Shopping Center against a claim by William Norkunas, from southern Florida.

Adams said Park Road Shopping Center decided to fight the claims in court, calling it a course of action that is becoming more popular than just settling the case.

“In our case, we asked the judge to dismiss it for lack of standing. It’s in the 4th Circuit Court of Appeals right now,” he said.

“Most of these lawsuits follow a pattern. They will go in and maybe make one visit and take photos of ramps, tables, counters and bathrooms at the facility. Then they’ll demand injunctive relief and fees.”

The Charlotte area is no stranger to Norkunas, who, according to court filings, has polio and drives a scooter. He has filed roughly 12 lawsuits in the past two years throughout the Charlotte region and in western North Carolina, targeting Queen City properties as well as those in Asheville and Greensboro.

Adams said Norkunas has filed about 80 suits up and down the East Coast so far this year.

Norkunas disputes the idea that he doesn’t have standing in the Charlotte area, saying he shops at Park Road Shopping Center because Jefferson, where he has a home, is a “small town far away from big cities.” He flies into Charlotte about six times a year, he said. His lawsuit claims the center is in violation of the ADA.

Tenants can also find themselves slapped with ADA lawsuits.

“The way the statute is set up you can own, or be a tenant in, one particular building and you’re still a defendant in this kind of suit,” Bowers said. “Any tenant in a building can be in the suit. Those are the defendants that have a harder time defending, if you’re a small restaurant or shop.”

There have been a rash of lawsuits every few years since the ADA was enacted in 1990, Bowers said.

When plaintiffs sue, it isn’t for any particular damages, observers say.

“The primary penalty in that law is facing a lawsuit if your facility is not accessible and you’re open to the public,” said Brian Coarke, assistant professor at Charlotte School of Law. “They can’t get damages, but they can recover attorney fees and other fees. It is sort of a cottage industry, these lawsuits.”

Still, the lawsuits have cost property owners.

“They come in and demand $10,000 to make this or that change to the building because of legal fees, expert fees and so on,” Bowers said. “The litigation might end up costing more than the $10,000 or $15,000. So, property owners are quick to settle the matter.”

But those involved in such cases said that appears to be changing as judges dismiss more and more cases.

“They see that these people have no intention of shopping there again, they don’t live in the area and they’ve never been to these stores or businesses before this,” Bowers said.