MARSHALL, Minn. – Cal Brink was tired of the lawsuits that just kept coming. Since the first suit claiming lack of disability access was filed more than a year ago, businesses in this southwest Minnesota town of nearly 14,000 people have been worried that they, too, would be hit.
Nine lawsuits have been filed here so far by the Disability Support Alliance, a nonprofit group formed last summer, including one against the only bowling alley in town. The owner said he will soon close rather than pay the DSA's $5,500 settlement offer or make the $20,000 of changes needed to comply with the Americans with Disabilities Act.
"Nobody fights them, because it's going to cost you more to fight," said Brink, executive director of the local Chamber of Commerce.
Now Marshall is fighting back. Working in concert with the Minnesota State Council on Disability, Brink developed an access audit for local businesses, allowing them to develop a plan to fix ADA issues and potentially to ward off litigation.
The plan has won the attention of the state Department of Human Rights, which hopes it could be used in other communities hit by serial litigation.
But Eric Wong, who uses a wheelchair and is one of DSA's four members, doesn't think Marshall area businesses should get more time to comply with the ADA. His group "is currently in the process of producing a voluntary mass settlement agreement for those businesses in Marshall that are ready to confess to their crime, fully comply … and pay the damages/restitution that they are liable for under the law," Wong said in an e-mail.
He's calling the agreement the Marshall Plan, and Wong plans to roll it out across the state.
Disability advocates say DSA's lawsuits are more about winning cash settlements than making changes that would add ramps, widen aisles and allow wheelchair access.
The alliance and its attorney, Paul Hansmeier, have filed nearly 60 disability access lawsuits against businesses across the state.
"If someone's going to get mad for not following the law, I don't know how to respond to it," Hansmeier said.
Wong, who has Ehlers-Danlos syndrome, which makes it uncomfortable to sit in his chair for long periods of time, was equally unapologetic, calling DSA's work community service.
"The lawsuits will stop when there is no more access crime to prosecute," he said by e-mail. Many businesses "fail to understand that … we are now a zero tolerance state."
Bruce Shover, who has owned Marshall Bowl for 22 years, said he doesn't want to close his business, but "I just can't continue doing what I'm doing." When disabled bowlers have asked to use the lanes in the past, Shover said, he has accommodated them with portable ramps.
Hansmeier has been sanctioned across the country for his involvement in a separate series of lawsuits. In those cases, Hansmeier and two partners in the Chicago-based Prenda Law firm sued 16,000 men, accusing them of illegally downloading copyrighted porn. The suits threatened to publicly name the men unless they settled, a tactic that netted "a little less than" $15 million, a partner told Forbes magazine.
A federal judge sanctioned Prenda in 2013, characterizing the firm as a "porno-trolling collective." The judge referred the case for criminal prosecution, and suggested the principals should be disbarred.
The firm dissolved itself after the ruling.
Hansmeier registered the Disability Support Alliance in Minnesota in July 2014 and listed himself as the nonprofit's agent. Its members, all of whom live with a disability, include Wong, of Minneapolis, and three Marshall residents.
Two months after it was created, the group filed its first lawsuit. "The DSA will be proud to be the first in the nation to successfully bring criminal charges against those who choose to ignore the ADA and violate our right to live free of unlawful access discrimination," Wong said this week. He cited the state Human Rights Act, which, unlike the ADA, gives plaintiffs the authority to file a criminal misdemeanor charge, punishable by up to 90 days in jail, a $1,000 fine, or both.
Wong said the DSA's mission goes beyond access, with hopes of running its own personal care assistance services company and a wheelchair manufacturer.
Lawsuits have been filed against the Applebee's restaurants in Shakopee and Mankato, against the Muddy Pig in St. Paul, and against businesses in Rochester, Watertown and Minneapolis. The chief judge of Hennepin County District Court said the suits raise the specter of serial litigation and ordered all of the Minneapolis suits to be handled by one judge.
Most businesses settle, but the Chatterbox Cafe in south Minneapolis went to trial last month. Its attorney, Susan Minsberg, said the April 13 trial lasted a few hours. A judge's ruling is pending.
The issue was the pub's front entrance, which has a 6-inch step. A side entrance was navigable for wheelchairs, Minsberg said, but Wong said it was not technically ADA compliant. Even after fixes were made, the lawsuit continued.
"Why don't they call the Minnesota State Council on Disability? Call PACER, or Courage Center?," Minsberg said, saying those groups negotiate better disability access, typically without lawsuits. "Minnesota is so forward thinking on issues like this. This isn't about access."
The ADA, passed 25 years ago, has spawned serial litigation in other states, especially California, said Peter Berg, of the Great Lakes ADA Center, based in Chicago. Still, the law has been around long enough that businesses should have made efforts by now to comply, he said. There's no grandfather clause that allows old buildings to remain inaccessible.
Pamela Hoopes, legal director of the Minnesota Disability Law Center, a private nonprofit that offers free legal services for the disabled, said access problems remain.
In a typical case, Hoopes said, they talk to businesses rather than sue them. "That's a better use of everyone's resources," she said.
In Marshall, the DSA campaign has sharply divided the disabled community.
"From the very beginning, I had reservations," about the DSA, said Chelsie Hermsen, who uses a wheelchair and was initially invited to join DSA. "Is it even legal?"
Friend Tashauna Swanson, who also uses a wheelchair, said she's always found it easy to get around Marshall. When she's had a problem, business owners accommodate her. If there's anything good to come out of the DSA case, she said, maybe it will spark a broader conversation.
Brink, the head of the local chamber, has been working with the Minnesota State Council on Disability and local businesses to pre-empt lawsuits by offering better access. To date, 21 business have done audits.
"What Marshall is doing is fantastic," said Margot Imdieke Cross, of the State Council on Disability.
Three weeks ago, Brink got a call that members of DSA were going business to business with Hansmeier and taking videos. Worried, Brink rushed to meet them, sitting down at their lunch table at the Wooden Nickel, a local restaurant, to explain the audit plan.
Hansmeier hasn't sued any businesses in Marshall recently, but last week he filed a suit against a Mankato bar.
Meanwhile, Hansmeier's former law partner from Prenda Law, John Steele, recently started a new practice in Illinois. It's called "Accessibility Law Group." He filed his first ADA suit April 30.
Staff writer Dan Browning contributed to this report.