Disabled suits
eat at restaurateur
L&L Drive-Inn's president,
By Russ Lynch
saying he's in compliance with
the law, has gone to court
to fight the claims
Star-BulletinSaying he is fed up with accessibility lawsuits filed against the L&L Drive-Inn restaurants, Eddie Flores is fighting back.
He says he has nothing against people with disabilities and he believes his 36 franchised L&Ls have made all the changes required by the Americans with Disabilities Act. But the restaurants keep getting sued or threatened with lawsuits.
Passed in 1990 and effective in 1992, ADA sets rules that businesses and public offices have to follow to ensure that people in wheelchairs, the blind or those with other disabilities can use their services.
Unlike almost all of the hundreds of Hawaii businesses that have been served with ADA lawsuits, Flores refuses to settle out of court.
Flores is president of L&L Franchise Inc., which has filed motions in federal court alleging that one of the plaintiffs later admitted in a deposition that he had never been in a restaurant he sued.
The motion also charges that the plaintiff's attorney, Lunsford Dole Phillips, is using disabilities cases to make money for himself rather than to improve accessibility for the handicapped.
"This type of case, where a disabled person is used to investigate ADA violations without being discriminated against himself, but merely to generate revenue for counsel through collection of attorney fees, demeans the spirit and purpose of the Act," says the motion filed by L&L's attorney Ken Kuniyuki.
Phillips told the Star-Bulletin that he did list the name of the wrong plaintiff in a case against the L&L in the Gentry Waipio Shopping Center.
Phillips, who uses a wheelchair, has filed about 200 such ADA cases in Hawaii and said he accidentally mixed up the names of two disabled clients in the Gentry Waipio case.
L&L's motions seek a summary judgment that L&L is in compliance with ADA and that Henry "Hank" Emerick of Kailua, the plaintiff in the Gentry Waipio case, and other defendants should pay L&L's costs for attorneys and experts.
Phillips said he should have filed the suit on behalf of Eric Parr, who had trouble at the Gentry Waipio L&L. Parr, who recently filed an ADA-related suit against Neiman Marcus shortly after the department store opened at Ala Moana Center, confirmed that he should have been listed as the plaintiff.
Emerick also was the plaintiff in an ADA suit against the Kapiolani L&L. The suit described seating, counter heights and other internal details. Emerick later said in a deposition that he had not actually been inside the Kapiolani restaurant.
Phillips said that is meaningless since Emerick had a companion who went in and reported on what he saw.
L&L attorney Kuniyuki said in an interview he hadn't heard Phillips' explanation about naming the wrong plaintiff in the Gentry Waipio case.
"We've always said, 'if we're not in compliance we will do what we have to to bring the restaurants into compliance (with ADA),' " Kuniyuki said. He said the people who are suing are "just generating litigation to line the pockets of their attorney."
Phillips strongly disagreed with that characterization and insists that several L&L restaurants are still not in compliance.
"If they have not done something, it is because they have chosen not to do something," he said. "Then for an owner to choose not to comply with the law and then turn around and blame the lawyer -- it's not worth responding.
"I have done a couple of hundred of these lawsuits and none of them have ever gone as far as these L&L suits. Which doesn't make any sense because the amount of money (to fix the problems) is so little," Phillips said.
"I have sued hotels that had to spend hundreds of thousands of dollars to make changes and they didn't litigate. Somebody (in L&L's case) is operating out of principle and I don't know what that principle is, unless it's (that) they don't think people with disabilities have civil rights," Phillips said.
"I have to totally disagree," Flores responded. "My position is that L&L would totally agree with the ADA law and we are in full compliance. If any disabled people have any problem, we are more than happy to accommodate them."
After all, it's business, he said. "We don't want to discriminate against disabled people. In fact, we welcome them."
Emerick also strongly objected to L&L's charge that he and the attorneys are in it only for the money. He said his sole purpose in filing suits was to press L&L and others to do what the federal law says they must do: make their places accessible for the disabled.
As for the charge that attorneys are making money out of ADA, Emerick's position is: So what?
"If you've got a lawyer out there in the trust business, he's going to be out there selling revocable living trusts and so on. Everybody is out there trying to make a living," Emerick said.
If someone has a legitimate complaint, he's going to need a lawyer to pursue it and there's nothing wrong with that, said Emerick, who was responsible earlier this year for getting a federal magistrate to order the city to stop charging $10 for disabled-parking decals.
"What other course does anybody have? None, basically none. You have to sue them," Emerick said.
But Flores maintains that the lawsuits make claims that are well beyond what ADA requires and they have side effects that do nobody any good, he said.
For example, Flores said he had to tell vendor Eugene Shiroma to take his "I Love Bubble Gum" machines out of all the L&L restaurants because of lawsuits claiming the turn-handle vending system violates ADA since people who don't have -- or can't use -- their hands aren't able to use the machines.
Shiroma contends the machines don't violate the law because nobody makes the equipment that would be required and experts have told him that the law requires only what is "readily achievable."
Still, Shiroma said, Flores made him take out the machines because he didn't want to deal with more lawsuits.
Flores is not alone in his belief that many of the lawsuits brought under the act are unjustified.
The Sizzler Restaurant group, for example, says it is doing everything it can to comply with ADA in welcoming disabled guests and making their visits comfortable.
But Sizzler, struggling to keep ahead in a tough economy, has been sued and doesn't know how long it can fight, said Gary Sallee, president of Sallee Hawaii Corp., which took over Sizzler's seven island restaurants early last year.
Sizzler has already pulled the pay telephones out of two of its restaurants rather than make what Sallee sees as expensive changes to meet the accessibility demands of the lawyers representing disabled clients.
Sallee said he wondered how that benefits anyone.
Restaurant operators say there is nothing in the law that requires them to provide phone service and Sallee is the one who's decided it's better to deny to everyone than to fight.
His attorney is advising him not to fight because it will cost him too much, Sallee said. He's undecided but leaning toward a settlement if it's a fair one.
"I do comply and I do make every effort to comply and continually improve," he said.
"And I still get sued and in the process, rolling over (settling) is the cheapest thing to do and that's the way the lawyers make their money."
Flores said he knows fighting will cost his L&L business many thousands of dollars, but he feels strongly that all the L&Ls have satisfactory access for the disabled and he must fight or face lawsuit after lawsuit.
