Sixteen federal complaints, filed in agitated state by a single plaintiff, have become old hat for attorneys
Business and property owners across Durango were stalked in mid-October by a spate of lawsuits that have led them to protect themselves against what they describe as the $10,000 shakedown.
At least 16 facilities have faced lawsuits for lack of handicap parking, in violation of the Americans with Disabilities Act. Steven Daniel Felix, address unknown, is the plaintiff named in the lawsuits. His attorney is Texas-based attorney and former wrestling promoter Richard Bruce Tharpe. Self-proclaimed compliance “testers” like Felix are freelancers who do not represent the government.
These ADA Title III federal lawsuits are not an anomaly. The same thing happened in Durango in 2016 with another plaintiff and another attorney citing various ADA violations. A quick internet search reveals some simple facts. The lawsuits are a plague across the country, all following the same pattern.
The pattern goes something like this: 1) Lawsuits are filed against business owners who face thousands, if not hundreds of thousands of dollars in federal penalties for ADA violations. 2) The vast majority of business owners address violations immediately. 3) Plaintiffs’ counsel agrees to dismiss the claim for cash.
The Americans with Disabilities Act, passed by Congress in 1990, prohibits discrimination against persons with disabilities in several areas, including employment, transportation, public housing, communications, and access to state and local government programs and services.
Organizations and businesses can be fined up to $75,000 for a single ADA violation and $150,000 for additional violations. Such large fines can shut down a business — as would be the case with Clark Kelman, which owns North Main Laundry and Town Plaza Laundry in Durango.
Kelman was served because he didn’t have a handicapped parking space in front of the Town Plaza Laundry. The lawsuit faces a federal penalty close to $100,000, he said. Kelman had no idea he was going to have a handicapped parking space out front, but he hired a contractor, purchased the necessary signage and had one completed in days.
“I contacted attorney Tharpe and told him he was sorry and that I fixed it and he replied that was fine but he refused to drop it,” Kelman said. “Now he wants me to settle out of court for $10,000.”
The Durango Herald was able to contact seven of the 16 companies served and all reported exactly the same thing. Everyone was surprised by the lawsuits. All were told they could face a fine close to $100,000. Disabled parking spaces were immediately set up at all of them. And everyone was told by Tharpe that if they paid him $10,000, he would drop the lawsuits.
Six of them hired lawyers. Kelman contacted a Denver-based firm that offered him nearly $10,000 just for representation. And the company said he’d probably still have to pay Tharpe $5,000. Kelman decided to negotiate alone with Tharpe.
“So yes, I’ve been trying to negotiate the amount down ever since,” he said. “And I’ve offered to donate to the local VFW because the guy who filed the lawsuit, Steven Felix, claims in the lawsuit that he’s a disabled war veteran. And I’ve offered to donate to the Southwest Center for Independence here in Durango. But Tharpe said no.”
Longmont attorney Courtenay Patterson, who practices labor and employment law, including ADA Title III cases, has seen it all before. She represents two of the Durango stores that were served.
“I’ve done probably 35 of those lawsuits and I’ve done it in multiple states, including Colorado,” she said. “I have represented clients in Pennsylvania, Washington and Arizona. And I’ve worked with Tharpe before when he sued companies in the Denver area.”
The $100,000 fines Kelman and others mention from the lawsuits are intended to persuade them to settle, she said. The penalties if found guilty in federal court are real enough, but attorneys like Tharpe behind these lawsuits are entitled to nothing more than attorneys’ fees and costs.
“That’s why they’re filing these lawsuits,” Patterson said. “It’s basically just a scam to try to extort legal fees and costs from companies. And they throw out these numbers like $75,000 and $100,000 to scare people.”
In cases where the defendants brought their business or property into ADA compliance, the attorney reports to the court that the job is done, making the case “contentious,” meaning the court has no jurisdiction, and the case is going away, Patterson said.
“In[Kelman’s]case, the attorney is just trying to scare the guy. I will not let my clients pay money from the other side,” she said. “With these unrepresented companies, they’re going to try to just push them into some sort of settlement.”
But she said the cases are difficult to navigate for those unfamiliar with the law and the federal court system. Defendants can’t represent themselves if they’re a Colorado corporation, that’s just the law, Patterson said. Or in federal court if it is an LLC or corporation.
“So that’s the other problem,” Patterson said. “These companies get into a corner where they don’t want to hire a lawyer and they just pay this guy because paying $10,000 is cheaper than paying a lawyer.”
But for those who hire a lawyer, it’s pretty easy.
“The attorney provides the necessary information and it’s dismissed,” Patterson said. “And if not, it’s like, ‘Fine. Don’t reject. I will arrange it and I will prosecute you for fees and costs.’ So they don’t want to have to deal with a lawyer.”
Durango business owner Jay Bruton was served with his lawsuit while raking leaves on Saturday. He owns the land where Animas Glass is located. He was quite stunned to be served, he said. He is committed to doing everything possible to make things accessible, feels that’s the way it should be. He immediately had the handicapped parking space put in order.
“But I guarantee you they won’t get 10 grand out of me,” he said. “I would rather pay my attorney working on my behalf and withhold from this other attorney what he believes to be his just reward.”
Bruton also had questions about Felix, the plaintiff who was named in all the lawsuits.
“It would be very interesting to hear from him because as far as I can tell and some other people who have been sued, they have cameras and they don’t think that guy ever got out of his car,” Bruton said. “They just drive by and take photos. You never got into the business. You have never bought anything. It’s just a bogus deal. It’s so frustrating.”
Durango business owner Bill Hermesman, who had some properties that were served with lawsuits, also wonders about Felix, saying the lawsuits allege how much pain and suffering the companies caused him because he didn’t have handicap parking.
“I was like Jesus, give me a break,” Hermesman said. “We set up the parking lots and now he just wants the $10,000. For what? For what?”
All people who herald spoke to those who have been served with lawsuits supporting ADA requirements, but all say the law should require companies to receive a warning with time to comply before facing lawsuits. As it stands now, the loophole for robbery lawsuits is big enough to chase a convoy of semi-trucks full of “ambulances” driving through attorneys, Hermesman said.
“It’s being tabled in Congress all the time,” Patterson said. “Apparently our country has bigger problems to deal with. Fixing the issue was actually suggested by Rep. Ted Poe of Texas in 2017 or maybe 18 and I was going to testify before Congress but the whole thing was filed.”
Calls to attorney Richard Bruce Tharpe went unanswered. And the herald could not locate Felix or verify his military record until Thursday afternoon.