Dec 18, 2016 -- The Arizona Attorney General’s Office has filed a 20-page motion to dismiss more than 1,000 civil lawsuits filed by a foundation that accuses area businesses of widespread violations of the federal Americans with Disabilities Act and a similar state law.
article by Jim Walsh, for the Ahwatukee Foothills News
article by Jim Walsh, for the Ahwatukee Foothills News
The controversial suits were filed against many area businesses, and allege mostly technical violations of the ADA, including that handicapped parking signs are too low or that international handicapped symbols are not displayed.
The motion reprises similar pleadings by the Attorney General’s Office, which prompted a Maricopa County Superior Court judge to consolidate more than 1,000 suits into one test case to get them dismissed.
“Plaintiffs complaints must be dismissed for lack of standing. The complaints fail to meet Arizona’s rigorous standing requirement, because they do not allege a distinct and palpable injury and do not present cases involving true adversaries with ripe claims,” the motion reads.
“Plaintiffs never allege they patronized or attempted to patronize any of the businesses, encountered any barriers, and had disabilities incompatible with barriers,” the motion says. “Instead, plaintiffs allege merely that (David) Ritzenthaler and others with disabilities were ‘deterred’ in some vague way from visiting the consolidated defendant’s businesses.”
The suits have been largely based upon inspections of parking lots by the Advocates for Individuals with Disabilities Foundation. Pictures taken in the parking lots purport to show ADA violations and are used to persuade defendants to pay $7,000 or more to settle the case.
The foundation has argued that it is enforcing the ADA through civil suits because the Attorney General’s Office and other government agencies have failed to enforce the landmark civil rights law, first passed in 1991. It says lack of enforcement has created an air of complacency about the ADA.
Peter Strojnik, the attorney representing the foundation in the suits, also is under pressure from a federal judge to prove why the suits do not violate the Professional Code of Conduct that sets ethical standards for attorneys. The two court actions stem from the same group of cases but are not otherwise related.
“Plaintiffs have cried ‘deterrence’ against over a thousand businesses without ever bothering to patronize those businesses, notify those businesses of the alleged non-compliance, or allege that they intend or desire to patronize those businesses,” the motion reads.
Jack Wilenchik, an attorney for the foundation, said his client is filing a special action with the Arizona Court of Appeals, challenging a ruling by Maricopa County Superior Court Judge David Talamante that rejected a request to amend the complaint to add a specific injury.
It would be possible for the foundation to merely file new suits against the businesses, adding specific examples of how barriers prevented a disabled person from entering a business, to circumvent the Attorney General’s Office’s argument, Wilenchik said.
He said lawyers are fighting over complicated procedural issues, when the basic issue is a lack of adequate parking spaces to accommodate the disabled.
“A large percentage of these places haven’t done anything, and they won’t,” Wilenchik said.
A driver with disabilities should not have to file a complaint with the Attorney General’s Office or in a court of law to find a place to park, Wilenchik said.
Wilenchik has previously sought a court order, technically called “an order of mandamus,” to force the Attorney General’s Office to enforce the law.
“The Office of the Attorney General has been required by law to conduct periodic inspections of these public accommodations for over two decades, but it has never done so,” Wilenchik wrote in a previous court filing.
The motion reprises similar pleadings by the Attorney General’s Office, which prompted a Maricopa County Superior Court judge to consolidate more than 1,000 suits into one test case to get them dismissed.
“Plaintiffs complaints must be dismissed for lack of standing. The complaints fail to meet Arizona’s rigorous standing requirement, because they do not allege a distinct and palpable injury and do not present cases involving true adversaries with ripe claims,” the motion reads.
“Plaintiffs never allege they patronized or attempted to patronize any of the businesses, encountered any barriers, and had disabilities incompatible with barriers,” the motion says. “Instead, plaintiffs allege merely that (David) Ritzenthaler and others with disabilities were ‘deterred’ in some vague way from visiting the consolidated defendant’s businesses.”
The suits have been largely based upon inspections of parking lots by the Advocates for Individuals with Disabilities Foundation. Pictures taken in the parking lots purport to show ADA violations and are used to persuade defendants to pay $7,000 or more to settle the case.
The foundation has argued that it is enforcing the ADA through civil suits because the Attorney General’s Office and other government agencies have failed to enforce the landmark civil rights law, first passed in 1991. It says lack of enforcement has created an air of complacency about the ADA.
Peter Strojnik, the attorney representing the foundation in the suits, also is under pressure from a federal judge to prove why the suits do not violate the Professional Code of Conduct that sets ethical standards for attorneys. The two court actions stem from the same group of cases but are not otherwise related.
“Plaintiffs have cried ‘deterrence’ against over a thousand businesses without ever bothering to patronize those businesses, notify those businesses of the alleged non-compliance, or allege that they intend or desire to patronize those businesses,” the motion reads.
Jack Wilenchik, an attorney for the foundation, said his client is filing a special action with the Arizona Court of Appeals, challenging a ruling by Maricopa County Superior Court Judge David Talamante that rejected a request to amend the complaint to add a specific injury.
It would be possible for the foundation to merely file new suits against the businesses, adding specific examples of how barriers prevented a disabled person from entering a business, to circumvent the Attorney General’s Office’s argument, Wilenchik said.
He said lawyers are fighting over complicated procedural issues, when the basic issue is a lack of adequate parking spaces to accommodate the disabled.
“A large percentage of these places haven’t done anything, and they won’t,” Wilenchik said.
A driver with disabilities should not have to file a complaint with the Attorney General’s Office or in a court of law to find a place to park, Wilenchik said.
Wilenchik has previously sought a court order, technically called “an order of mandamus,” to force the Attorney General’s Office to enforce the law.
“The Office of the Attorney General has been required by law to conduct periodic inspections of these public accommodations for over two decades, but it has never done so,” Wilenchik wrote in a previous court filing.
http://www.ahwatukee.com/feeds/az_community_politics/article_b00998b6-c3b4-11e6-9d71-7f55f0e7cac6.html
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