WADENA, Minn.—The cities of Wadena and Detroit Lakes could be the latest victims in what some believe is a 'drive-by' lawsuit.
In other words, lawsuits in which an attorney and/or their clients grab onto a certain type of case and seek to apply it up and down the road they travel. In this instance, the city of Wadena is being sued over allegations of handicap accessibility at the Wadena Municipal Liquor Store. The city of Detroit Lakes is being sued for similar allegations by the same plaintiff.
The plaintiff in the case is Aaron Dalton of Burnsville, Minn., who has been involved in numerous Americans with Disabilities Act compliance cases in recent years. Dalton, who has cerebral palsy, claimed that he stopped by the Wadena store last summer and was unable to gain access with his motorized wheelchair. Dalton is seeking "nominal damages" and a judge's order to bring the liquor store into compliance with federal law.
The city of Wadena is being represented by defense attorney Hannah Felix who works with the Minnesota League of Cities. Felix said the city received notice of the lawsuit Jan. 15. City attorney Jeff Pederson handed over the information to the League of Cities, which handles the city's insurance. That's when Felix took over the case and provided an answer to the complaint on Feb. 8.
According to Felix this type of case is not new, and it's a fairly standard complaint that is often seen with just a few variables to wording.
"They have been becoming more common against both public and private entities in the last few years," she said.
Common enough that just last week, the city of Detroit Lakes received notice of a lawsuit regarding handicap accessibility at the Detroit Lakes city liquor store, city administrator Kelcey Klemm confirmed Monday, Feb. 26.
Klemm said he could not comment on the details of the case but said that it was similar to the case against the city of Wadena. A difference being that the Detroit Lakes city liquor store, Lakes Liquor, shares a parking area with other businesses. Klemm said the plaintiff, Dalton, alleges he was unable to access the business when visiting June 25, 2017.
In many cases entities were built in such a way that discriminated against disabled people by making it difficult or impossible for them to enter. In other cases, facilities have been made accessible but due to certain variables, they still do not fully meet standards.
While the complaint against the city of Wadena said that Dalton was unable to get into the liquor store, Felix said the liquor store has had wheelchairs come in in the past, "it may have just been his choice not to enter."
She considered the case similar to numerous cases seen across the state known as "drive-by lawsuits."
Felix couldn't give many details of the next steps in the case but said the city works diligently to make sure its sites are accessible to all.
Another local business that was sued by Aaron Dalton for similar ADA accessibility was The BBQ Smokehouse of Wadena back in July 2017. Owner Tyler Ehrmantraut said he believes this was a drive-by lawsuit in which the plaintiff apparently was denied access to his business on a Sunday—a day that the business is not open.
The lawsuit against the Smokehouse also indicated that the business lacked parking lot striping, and a designated handicap accessible spot. Those were issues that Ehrmantraut later corrected after paying a $3,500 settlement.
"It's the biggest scam," Ehrmantraut said of the lawsuits. He noted that he planned to have striping put down before receiving the summons at home.
He also indicated that the store is accessed by wheelchair-bound customers regularly, and to his knowledge, the plaintiff was never denied access. Ehrmantraut believes the plaintiff likely never even visited the store.
Some issues that can cause a store to be non-compliant can include the size of a handicap sign, the width of a sidewalk or obstructions in the path. Felix mentioned in the case of the Wadena store a garbage can may have been partially obstructing a path, which she believed was since moved.
Ehrmantraut suggested businesses should do their best to reach ADA compliance. He noted that they should make sure their parking lots are striped and stripes remain visible and make sure to have a designated handicap accessible parking spots with signs that are the correct size and highly visible.
According to court documents, the case involving the Wadena Municipal Liquor store will go to a settlement conference set for April 9 with Magistrate Judge Leo I. Brisbois in St. Paul.
Plaintiff has history in ADA lawsuits
The plaintiff's attorney, Padraigin Browne with Browne Law LLC, has been bringing numerous ADA compliance lawsuits against various private and public entities since her husband Paul Hansmeier was entwined in an investigation by the FBI in relation to his practice of filing scores of disability-access lawsuits, according to the Star Tribune. Hansmeier was later barred from practicing law.
In a statement to Fox 9 News, Browne said, "Although the ADA was passed over 25 years ago, my clients still run into accessibility issues on a daily basis. Their goal is to be able to patronize businesses on a full and equal basis. Violations which may seem insignificant to those who are not affected by them can, and often are, the difference between my clients' being able to access a business and being stuck on the outside looking in."
Dalton has been the plaintiff in a number of recent ADA cases including a lawsuit against the city of Detroit Lakes, the city of Wadena, The BBQ Smokehouse, Jammers Inc. and S & L Thom Inc.
In the House
A bill is moving through the pipeline regarding ADA suits that are indeed part of a scam. The bill seeks to use education to help improve compliance of the law and proposes to have a pre-suit notice, giving businesses a chance to become compliant. According to the bill, it would "amend the Americans with Disabilities Act of 1990 to promote compliance through education, to clarify the requirements for demand letters, to provide for a notice and cure period before the commencement of a private civil action and for other purposes."
On Feb. 15 the House of Representatives passed the ADA Education and Reform Act (HR 620) by a vote of 225 to 192, with 12 Democrats voting for the bill. According to the Minnesota Council on Disability, the number of ADA Title III lawsuits has risen dramatically in the past four years. HR 620 is primarily an attempt to stem the tide of lawsuits brought by serial plaintiffs who bring dozens, if not hundreds, of lawsuits against businesses based on relatively minor physical access barriers found in their facilities for quick settlements.
The Minnesota Council on Disability states that supporters of the bill say that because there are so many technical requirements that businesses can violate unknowingly (e.g., the toilet paper roll is half an inch too far away from the toilet)—providing businesses with notice and an opportunity to remove barriers is a good thing and does exactly what the law was designed to do—make businesses accessible. Opponents say that the amendment will cause businesses to sit back and take no action to comply with the law until they receive a notice. In addition, they claim that attorneys will be reluctant to take on these cases because there is no chance to receive a fee award by a court if a business removes the barriers identified in the notice.