The invective came fast and furious at a meeting at Mancini’s Char House a couple of weeks ago. The place was packed with St. Paul small-business owners, all of whom had received legal notices in the mail.
“I was expecting 10 people to show up. It was more like 40,” said Brenda Lamb, owner of the downtown Candyland.
The focus of everyone’s ire: A new batch of lawsuits, under the Americans with Disabilities Act, had hit numerous businesses along St. Paul’s West Seventh Street, from Mancini’s to DeGidio’s to McDonald’s.
Soon, there was some chatting, and an owner of Shamrocks took a phone call.
He promptly turned and announced, “They got me, too!”
Years after they first made headlines in Minnesota, the ADA lawsuits are now appearing in force in St. Paul. State legislation was passed months ago to limit such lawsuits — but they have merely shifted to another venue.
Businesses are being accused of violating a law that has been around since 1990. And the lawyer behind many of the suits argues that 27 years has been time enough for businesses to make their parking properly labeled and close enough; restrooms usable for those in wheelchairs; and entryways accessible for everyone.
“In light of all the publicity this has received, I find it harder and harder to accept pleas of ignorance by noncompliant business owners,” said lawyer Patrick Michenfelder of St. Michael.
At the meeting, many business owners had already chosen not to fight.
“There were so many people that settled, I was really shocked,” Lamb said.
“I’ve been in business 55 years; I’ve never experienced anything like this,” said David Leventhal, owner of Highland Park’s Cecil’s Deli, which settled one claim filed by a different lawyer only to be served with a new one. He admits being noncompliant with ADA but contends that the fixes needed for compliance are impossible.
The rueful camaraderie of the business owners’ meeting masked plenty of anger and angst, later exacerbated by the announced closing of the original Red’s Savoy Pizza on East Seventh Street, which had recently settled such a suit — but whose owners still fretted about ADA compliance.
Just a week after the passing of its founder, Earl “Red” Schoenheider, his children have decided to close the original Red’s Savoy location. The 421 E. Seventh St. building, which the family does not own, is not ADA compliant, and has some major structural issues that need to be fixed, said company spokesman Reed Daniels.
“It played a role. As for pros and cons, it was another thing in the ‘con’ category,” said Reed Daniels, the business’s marketing director. To make the building fully compliant would have required updates costing in the low six figures, Daniels said. The death of pizzeria founder Earl “Red” Schoenheider sealed the building’s fate.
City officials showed up at the Mancini’s meeting, honoring an invite.
“We’re concerned as well,” said Robert Humphrey, spokesman for the Department of Safety and Inspections, which sent a staffer. “At this stage, there’s not a lot the city can do.”
Michenfelder says the costs of the suits and ADA compliance — for Red’s Savoy, in particular — are being exaggerated. In fact, there are federal safeguards that prevent ADA compliance from shutting a business down.
As for the meeting, he said, “I wish I would’ve been invited.”
STATE FIX DEFUNCT
Michenfelder draws an analogy to America’s civil rights movement.
“You get a lot of blowback when minorities stand up and fight for rights, if those minorities have been ignored for so long,” he says. “Compliance doesn’t happen voluntarily. And the government hasn’t dedicated resources to create compliance.”
City officials don’t argue with that last part. St. Paul, like most cities, checks for ADA compliance only when something is built or renovated. Annual checks don’t happen. And the state doesn’t do it either.
But last session, the Legislature — supported by business lobbyists and the state-run Council on Disability — passed a law that said businesses had to receive a letter before being sued over ADA compliance: Businesses would get 60 days to fix things before they could be served a lawsuit.
Business owners and their attorneys say they’ve yet to encounter anyone who was against ADA and wouldn’t fix things if given the chance.
Then why haven’t they already? Michenfelder asks. He now makes claims under federal law, bypassing state law.
When asked why he doesn’t file under state law and give businesses a chance to fix problems without court fees, Michenfelder says that would equate to no action at all.
“We dedicate the time to investigate the claim properly,” he says. If that work of taking photos and outlining alleged violations is spent just to send a business owner a letter and have it be resolved without any fee, “that equates to slamming the courthouse doors,” he says.
“It’s economics,” Michenfelder says. “The lawyers will not be able to do it.” And people without lawyers tend to be ignored, he says.
The same argument was made on the Senate floor, says state Sen. Nick Frentz, DFL-Mankato, who pushed for the ADA revamp in the Senate. Senators acknowledged that without fees, lawyers wouldn’t work; the debate was over how “minimal” the fees might be.
There is a catch in the federal law that wasn’t there under the state one. Plaintiffs — the people doing the suing — aren’t able to collect for damages. Only for attorneys’ fees.
But Michenfelder says his clients still collect: When he wins or settles, he gives them a portion of his court fees.
Either way, the money has led some lawmakers to question the motives behind the lawsuits.
“How many disabled people go to each business on the street, the next one and the next one? It’s clear they’re simply just looking for a violation,” said state Rep. Dennis Smith, R-Maple Grove, who sponsored the ADA bill in the House.
Michenfelder said there’s a reason for the blanket approach.
“A lot of people who do this work turn into advocates for a cause. Those type of people are the type that would go back” to multiple businesses in a row.
In the St. Paul cases, there are two main clients. Gerald Doyen, 49, a below-the-knee amputee with a hand deformity who uses a wheelchair; and Michael Ray Marchand, 65, who lost most of a leg and suffered severe burns in a motorcycle accident in 1985.
Requests to talk with them, made through Michenfelder, were declined. Attempts to contact them independently were also unsuccessful.
Michenfelder said his clients “lack experience in dealing with the media and are mindful of the negative view so many have of these cases.”
They are part of a larger group, which Michenfelder said had five members whom he declined to identify by name, called the Midwest Disability Initiative. After registering as a Minnesota nonprofit in February of last year, they are listed as a co-plaintiff on every lawsuit.
“The purpose of MDI is to ‘make a trail and leave a path’ by holding businesses that ignore the requirements of the ADA accountable,” complaints state.
The agent of that initial February registration, Traci Bradley, listed an apartment in Minneapolis’ Phillips neighborhood as her office. Sharing that apartment was Craig T. Seifert, the group’s lone incorporator who is also its executive director.
According to state records, Traci Bradley is one of more than 20 aliases of Traci Lynn Rankin, who has served six prison sentences, with convictions on credit card fraud, robbery, and multiple theft and drug charges, dating from 2001 to last December.
Attempts to reach her were unsuccessful, but Seifert — who confirmed Bradley was Rankin — said he’d asked her to sign as a favor.
“When I was sick, I had her take the papers down there to file,” said Seifert, who added that he’s known Rankin since she was 18. “She really doesn’t have anything to do with the company at all. I was the one that started it.”
On Friday, after being asked about Rankin, Seifert went to the secretary of state’s office and replaced her as the group’s agent. Michenfelder said he wasn’t aware of Rankin’s involvement and said she’s never been a named plaintiff in a case.
Seifert has a 1979 burglary conviction and another in 1987 for aggravated robbery. Since then, he has been convicted only of minor traffic offenses.
“I was a drug addict. In and out, but I turned my life around — clean for 27 years — and I like where I’m at,” he said, saying that while he’s not disabled himself, he’s been a disability advocate for years. For several years in the mid-1990s, he ran an occupational rehab center in Richfield.
He said he has known Michenfelder since the 1980s and admired him for his ethics. And when he saw ADA cases popping up in the news, he decided to create a group and initiate some himself. His first was in mid-2016 against Matt’s Bar in Minneapolis, with Marchand, whom he identified as a friend.
TO FIGHT, OR NOT?
Of Michenfelder’s cases, only a fraction — 13 — have been filed in court. The remaining 100 or so he’s held back, saying he won’t file and pay the $425 fee until he knows for a fact that a business will fight it.
The filed cases include suits against Candyland, Cecil’s Deli and Mickey’s Dining Car. Complaints against Red’s Savoy, Mancini’s, the Grand Ole Creamery and DeGidio’s are among the suits that have not been filed in court.
Most of the suits focus on three areas: parking; entries, including whether there’s a ramp; and restrooms — such things as grab bars or the height of towel dispensers.
“These aren’t frivolous lawsuits,” said David Fenley, ADA and access coordinator with the state Council on Disability. “Most of the time, there is some sort of violation there.”
Building owners say there are falsehoods in the complaints: a towel dispenser ignored; pictures taken of the wrong restroom; a tagged toilet that’s actually compliant.
Those suits haven’t been resolved, and thus far, no Minnesota judge has found one of the recent ADA suits to be frivolous.
Most of the suits are against businesses in buildings many decades old. While some accuse Michenfelder of targeting small businesses, he says that’s just the demographic using the dated digs.
Business owners say that even if they fight and get a case dismissed, they still shell out to their own attorney.
Customers wait in line outside Candyland in downtown St. Paul. (Pioneer Press: Andy Rathbun)
Take Candyland: Owner Lamb was sued about not having a table 36 inches or less from the ground, for a person in a wheelchair to sign receipts.
She fought, and in the end signed an affidavit saying a display table near her door served that purpose. The suit was withdrawn.
But she was still out about $15,000 for her lawyer. Compare that to a proposed settlement of $4,000 to $5,000.
“Even though my attorney’s fees were much higher, I wasn’t going to give a dime. It’s legal extortion,” Lamb said. “They’ll find another client. And the laws are always changing.”
Michenfelder notes that since its inception in 1990, the federal ADA has been revamped only once, in 2010.
Then there’s Red’s. The pizzeria settled under a private agreement.
Michenfelder called the settlement a “modest but confidential sum,” and added, “the idea that our case would expose Red’s to anything anywhere near $100,000 is a total falsehood.”
Red’s attorney, Joseph Windler, declined comment.
The Red’s case gets to a larger issue: whether an ADA suit can actually put someone out of business. Officially, it can’t. Federal law says all remediation must be “readily achievable,” meaning no undue hardship to fix.
That may be true for the fix itself, business owners say.
“But the attorney’s fees make me want to throw up every morning,” said Eric Mattson, 75, whose family has owned Mickey’s Dining Car in downtown St. Paul for 80 years. “I would feel better if somebody came in with a gun. We’ve reached the point where we’re literally deciding whether we want to do this anymore.”
Mickey’s — which is on local and national historic registries — is involved in another suitwith Michenfelder about the big three: parking, entry and restrooms.
The entry at Mickey’s Dining Car, which is listed on the National Register of Historic Places, is problematic, according to a lawsuit that says the restaurant is in violation of the Americans with Disabilities Act. Owner Eric Mattson says he’s had the entry evaluated and to make it ADA-compliant, he would have to build a ramp all the way into the street at St. Peter and West Seventh streets.
Michenfelder says they’ve already exchanged proposals “that will not impact the historical nature of the property,” including a “modest payment”; while Mattson — whose attorneys did not return calls — said his people have yet to offer a proposal and believes the strictures of the historic marker leave him “exposed forever.”
Others worry that even if they fix everything, the lawsuits could just keep coming with the same equation: settle for a price, or pay your lawyer more.
Michenfelder argues that when it comes to filing false claims, judges — and eventually the state bar — would frown on that.
“Couldn’t you make that same argument for any case? I slipped and fell and I’ll sue. We’d be seeing it in other areas,” he said.
Shamrocks, on West Seventh Street, remodeled in 2010. Which means – unlike most of the businesses served lawsuits – it triggered a recent city ADA inspection and passed.
“They did the restrooms; they did everything,” said city Safety and Inspections spokesman Humphrey.
Still, a couple of weeks ago, Shamrocks got sued for, among other things, a wheelchair ramp that the city deemed fine.
There’s a catch: the ADA was revamped in July 2010, the month after Shamrocks’ construction was completed, according to city records. It’s not clear whether that affected Shamrocks’ standards.
“It’s a tough thing to chew on, when you think you’ve done everything right,” said co-owner Mike Runyon.
Michenfelder admits that perception of the practice is hardly positive, based in part on the attorney who kicked it all off in Minnesota.
Paul Hansmeier once represented a group called the Disability Support Alliance — the first to bring the ADA suits across the state.
Hansmeier recently had his law license suspended and was criminally indicted, based on charges unrelated to the ADA suits. He’s accused by federal attorneys of helping to run a “honeypot porn” operation, uploading copyrighted porn to file-sharing sites, then suing and extorting whoever downloaded it with threats of public humiliation.
Hansmeier no longer pursues ADA cases in Minnesota. But his wife, Padraigin “Patty” Browne, has picked up his caseload.
There is no evidence of overlap in past or current membership between the Disability Support Alliance and the Disability Initiative.
But some state lawmakers and lobbyists view the groups similarly.
“What we do need is a federal fix,” said Beth Kadoun, vice president of tax and fiscal policy for the Minnesota Chamber of Commerce.
Rep. Ted Poe, R-Texas, has tried but never got any traction from either side of the aisle.
“It’s not a partisan thing. You have wounded warriors who need access; you can’t say no to these people,” said Fenley, of the state Council on Disability.
Arizona took a sweeping approach to the suits: its attorney general asked a county court to dismiss more than 1,000 of them, arguing that the group backing them had no legal standing. In February, the court tossed them all.
Fenley worries that the suits will give the disability community — and the ADA — a bad name. He’s going to organize a workshop for St. Paul businesses to educate them on the federal ADA.
It’s something Michenfelder says he’s all for.
“If Minnesota businesses would focus as much effort on that as they do on attempting to discredit the individuals who have the courage to stand up and fight for the rights of the disabled, the lawsuits they are so critical of would not exist,” he said.
With the work he puts in, he says, “I sometimes ask myself, ‘Is it worth it?’ ”
WHAT IS THE ADA?
The Americans with Disabilities Act was signed into law by President George H.W. Bush in 1990. It mandates that employers give reasonable accommodations to disabled employees, and outlines specific rules that make all public accommodations — including private businesses — accessible.
Link to article: https://www.twincities.com/2017/09/06/from-mickeys-to-reds-st-paul-mainstays-confronted-with-ada-complaints/