Originally published by Thomas J. Crane.
Howard Cohan visits many public establishments. Mr. Cohan is restricted to a wheelchair. He is disabled. But, he visits these public establishments in Florida to see if they are accessible to persons with disabilities. Many restaurants, stores and motels get nervous when they see him rolling toward their front door. See Cohan v. Southeastern Hotels Ltd. Partnership, et al, No. 3:14-cv-393 (N.D. Fla. 6/26/2015), in which he sued some two dozen different motels. See an order here in which instance he could not attend court due to medical treatment. According to one report, he has filed some 1200 lawsuits against non-compliant businesses.
He identifies himself as a “tester.” He tests these places to see if they comply with the ADA. The state of Texas just recently tried to pass a statute limiting the recovery for testers like Mr. Cohan. But, Mr. Cohan is genuinely impaired. And, he genuinely wants businesss to comply with the ADA. Speaking from experience, in some parts of my neighborhood, there are not enough sidewalks. Fredericksburg Road inside Loop 410 lacks sidewalks. So, one young man who uses a wheelchair is forced to travel in the busy street. He wears a huge cowboy hat, and has a tall bicycle flag attached to his chair to make himself more visible. Yet, just a few weeks ago, he was struck by a car. If you are in a wheelchair or suffer some impairment, the concerns of Mr. Cohan are quite genuine.
In Cohan v. Arvilla Motel, Inc., No. 8:15-cv-2174 (M.D. Fla. 1/18/2017), the court declined to award sanctions against Mr., Cohan after he dropped a lawsuit soon after filing it. The court noted rightly that Mr. Cohan has a genuine disability. He visited one motel as a “tester” with an ADA expert and found some violations. The court found that just because Mr. Cohan’s “calculated” presence on the property and his stated claim to return as a “tester” and using a “form” complaint that was not well drafted do not equate to bad faith. He might have failed to prevail on all his claimed violations, but it is apparent from the expert’s report and the photographs, that there was reasonable basis in law and in fact to support the allegations in his Complaint. See the decision here.
The court noted that it reached the same result in another lawsuit field by Mr. Cohan, Cohan v. Island House Resort Hotel, Inc., No. 8:15-cv-21-8 (M.D. Fla. 1/20/2017). Mr. Cohan does stay busy.
At least one news report suggests Mr. Cohan is motivated to sue by greedy lawyers. See a local Florida news station news report. But, the most the plaintiff can sue for is to rectify the barrier and for attorney’s fees. I do not know what Mr, Cohan’s lawyers are seeking as attorney’s fees, but the sooner the defendant settles, the lower the amount of attorney’s fees.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
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