Schwartz Zweben and the Ms. Wheelchair pageant, cont’d

by Walter Olson on July 8, 2008

Three years ago we noted (following reporting by Ed Lowe and J.E. Espino of the Appleton, Wis. Post-Crescent) (more) that

Representatives of the Hollywood, Fla.-based law firm of Schwartz Zweben & Associates have played a substantial role behind the scenes in helping organize, promote and support the Ms. Wheelchair America pageant and some of its state affiliates. And lawyers with the firm have filed more than 200 lawsuits in at least seven states and the District of Columbia on behalf of at least 13 pageant participants, “including state and national titleholders, state coordinators and pageant judges”.

Now the Birmingham, Ala. News follows up on the case of Colleen Macort, Ms. Wheelchair Florida 2002, who has filed more than 73 disabled-accessibility actions in Alabama “but has never spent a day in court because of settlements”. Local law provides that Macort cannot be compensated for filing the lawsuits, but the Wisconsin paper reported that the firm of Schwartz Zweben had engaged her as a consultant on other cases. The reporter is kind enough to quote me and mention this site (Liz Ellaby, “Bessemer woman crusades to address disability act violations, provoking critics”, Birmingham News, Jul. 3).

In the state of Washington, Ms. Wheelchair Washington 2005, Michelle Beardshear, has teamed up with the Florida firm to file 15 lawsuits, of which twelve have been settled, against enterprises in Clark County (Kathie Durbin, “Advocate for disabled not hesitant to sue for access”, The Columbian, May 27 courtesy Chamber ILR). And in March, Schwartz Zweben & Slingbaum (as it is now called) swooped down to sue twelve defendants in the Tucson area, including a number of well-known restaurants, alleging ADA violations. (Josh Brodesky, “12 Tucson businesses facing suits alleging Disabilities Act problems”, Arizona Daily Star, Mar. 28).

{ 10 comments }

1 Miss Havisham's Tea Party 07.09.08 at 1:45 am

I have to side with the disable Ms. Wheelchair’s cause-just superficially since I am not thoroughly briefed, at this moment, of her complete raison d’etre.

The disabled always need a voice. So many cannot speak for themselves and are subjected to barriers and biases in our society, in general.

Anyone that champions the cause of understanding and accommodations of this nations disabled has my support-but I do not like to be blindly loyal to any cause.

2 Deoxy 07.09.08 at 10:32 am

Tea Party,

I would strongly suggest that you are missing the backstory here.

I certainly agree that “The disabled always need a voice.” And some, indeed, “cannot speak for themselves”. I would even agree that there are a few “barriers and biases in our society” (though a good many of them are simply not worth the cost of removing, from a business perspective – adding a wheelchair ramp to the little shelter at the top of a trecherous mountain climb, for one absurd example).

But these sorts of cases aren’t generally about that. They are simply lawyers geting a payday – there have been several proven cases (and many that are certain) where the disabled plaintiff never actually went to the business in question.

Check the tag “ADA filing mills” on this verypost to see some such – this kind of thing is quite counterproductive to the cause of the disabled, as it is rather disastrous PR (and for good reason, though the lawyers are primarily to blame).

3 Miss Havisham's Tea Party 07.09.08 at 11:14 pm

Something tagged “ADA filing mills” is caste in a prejudicial light before I even read it. The information is already tainted. That’s okay, though. Common sense tells me that there are always opportunists that come along on the tails of whatever the successful suit trend is. Like you say, it is detrimental and may cause far more resentment of the disabled than the much needed compassion.

Re. Patronization
“where the disabled plaintiff never actually went to the business in question”

When the lawsuit is about access how was the disabled person supposed to have gone to the business in question?

Re. Expense to remove barriers
“a good many of them are simply not worth the cost of removing, from a business perspective”

Yes, businesses will not endure this expense unless it personally affects them. How then, if not by legal means does one persuade a business to invest in the welcoming of the disabled population?

It would be a great human relations move for any business or other entity to make a point of creating accessibility, not just for the sole purpose of avoiding lawsuits, but because, in these times, we are having a growing number of veterans returning home.

Most people (jurors) care vetty much about the comforts and needs of our veterans. I think we can agree on this.

4 Ted Frank 07.10.08 at 12:19 am

MHTP, “filing mill” lawsuits by definition are brought without any warning to the owner that there is a problem about accessibility, and are thus very rarely about access and more often about shakedowns for attorneys’ fees under loose ADA standards for plaintiffs. Again, look at the extensive history of the problem before prejudging our commentary.

5 William Nuesslein 07.10.08 at 8:33 am

Follow up is required with ADA. In the middle 1990’s there was a wheelchair guy who made use of the curb cuts in downtown White Planes New York. That city’s downtown was very flat. He went away after a couple of years, and there was no wheelchair person for at least 15 years. The question then becomes how much money are we spending for how many people. The ADA was passed in part because of the argument that widespread access is needed before wheelchair people can meaningfully make use of the access. By my observations that hypotheses has been proven false, and we should scrap the law itself. We could offer cost sharing for companies that actually have some disabled employees, That would focus resources to those who actually use them. The classic example was Houston in the 1970’s. Activists wanted wheel chair lifts on buses at terrifically high cost and disruption to bus service should the lifts be actually used. There was a wheel chair van service that was provided to those wheel chair people who had the ability to get around by themselves.

6 Miss Havisham, bitter anti-bride 07.10.08 at 5:42 pm

“without any warning to the owner” – Ted Frank

You are telling me that a complaint can be filed without any notice to the defendant? You are saying, I’ll assume, that there is no window of opportunity given to the defendant to make the necessary improvements or accommodations?

Why would any judge agree to such an unfairness. Certainly, there has to be notice given as part of a showing, and a reasonable time for compliance allowed.

7 Deoxy 07.11.08 at 12:24 pm

Miss Haversham,

Your latest comment shows that you indeed quite unaware of what you are commenting on, as Ted and I have both suspected and stated.

Here is also one particular point I would like to content:

“a good many of them are simply not worth the cost of removing, from a business perspective”

Yes, businesses will not endure this expense unless it personally affects them. How then, if not by legal means does one persuade a business to invest in the welcoming of the disabled population?

Since this is a “societal” benefit (that is, you’ve already admitted that it is no benefit to the businesses in question), “society” pays for it! That is, if the government wants to make businesses handicap accessible, just in case some handicapped person moves to the area someday (as mentioned above), the government can pay for it.

That’s “how else”. Anything else is simply a tax by another name.

8 Amanda McBay 07.15.08 at 10:30 pm

I think that whoever posted this is completely ignorant. The law states that all public places have to be accessible. It does not say anything about the government making them accessible. I think that should be up to the business owner. Furthermore, we are everywhere.

9 Miss Havisham's Tea Party 07.16.08 at 5:01 pm

“just in case some handicapped person moves to the area someday”

How silly. All good business people know that having maximum accessibility available to all possible patrons/customers is the key to success. A business may be accessible in other ways besides the physical, too.

10 gitarcarver 07.16.08 at 6:00 pm

All good business people know that having maximum accessibility available to all possible patrons/customers is the key to success.

Sorry, but all good businesses do not know this.

Businesses have to make decisions daily on the number of products on a sales floor vs the space it takes for those products. The ADA sets limits on aisle widths, shelf heights, etc, all of which take valuable display space from the store.

The question that comes into play is whether the additional revenue generated from the people affected by the ADA makes up or surpasses the revenue generated from additional items for sale.

A business may be accessible in other ways besides the physical, too.

True. Which is why ADA paper mills have started to attack websites that are not “ADA compatable” (even though there is no direct statute to cover websites, and no way to make websites that are hosted outside of the country comply.) Once again, the question is costs verses benefits.

The fact of the matter is that the business decisions of a business should be made by the business – not the government or some fee seeking lawyer.

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