A gubernatorial appointee who chairs the Colorado Developmental Disabilities Council has filed dozens of lawsuits against small businesses over the past two months claiming they violate federal disability laws.
The 64 lawsuits filed so far by Mellisa Umphenour of Arvada are nearly identical in content and scope to scores of others filed in U.S. District Court last year in Colorado – and thousands of others filed in federal courts nationwide the past few years. Umphenour filed the suits on behalf of her 11-year-old son, who is disabled.
Often called “drive-by lawsuits,” they rely on the Americans with Disabilities Act and are often filed by disabled people or their caretakers. Each lawsuit typically alleges a range of ADA violations such as the height of a bathroom mirror, the location or wording of handicapped-accessible parking signs, or the placement of toilet-paper holders.
Business owners call the lawsuits predatory because they appear out of nowhere and often demand thousands of dollars in settlement costs. Sometimes the plaintiffs are hired by attorneys for a small cut of the settlement fees, according to a federal lawsuit in California by homeless plaintiffs who said they weren’t properly paid.
Umphenour did not respond to e-mails or messages from The Denver Post, nor did her attorney, James Carr, who recently set up shop in Colorado as ADA Justice Advocates at an address that is a UPS Store in Boulder.
“My personal feeling … is lawsuits sometimes are the only way to get things done,” said Marcia Tewell, executive director of the state disabilities council. “The sad part is sometimes you have to hit people where you get their attention.”
Tewell said Umphenour recently told her of the lawsuits, but she would not elaborate on the conversation.
The state-funded council works on getting people with disabilities to live regular lives through policy, innovative grants and outreach, Tewell said. Umphenour’s suits do not mention the council or her affiliation with it, nor do they violate state ethics rules.
The lawsuits often come in bunches – Umphenour’s attorney filed 20 of them on one day – and reflect a similar pattern. The plaintiffs say they visited a particular business only to be discriminated against when they found specific violations.
The suits are controversial in that some see them as little more than attorneys banking on a quick moneymaking scheme that uses the ADA as a cover, while others say it’s the only way to advocate for compliance of a 27-year-old law from businesses that should know better.
The suits are often geographical in scope, reflecting a pattern of visitation, such as a row of shops or stores along a specific street, or eateries in a certain part of town.
Owners of the targeted businesses – most of them restaurants, taverns or retail outlets – say they’re hijacked into paying settlements of several thousands of dollars in order to avoid costly litigation, money they would prefer to spend on fixing the problem.
Advocates for the disabled say ADA has been around since 1990, and, after all these years, non-compliance is inexcusable.
“There is certainly some merit in the lawsuits, to ensure compliance,” said Kevin Williams, an attorney for the Colorado Cross-Disability Coalition that has filed ADA lawsuits against businesses or municipalities, though not the kind considered “drive-by.”
“On the other hand,” he said, “I can see how this could be seen by some as a cottage industry.”
Umphenour, 37, is in her third year on the disabilities council, after her appointment by Gov. John Hickenlooper. Court documents show Umphenour is a registered home health-care worker for Right At Home in Centennial and is a criminal justice graduate of Metropolitan State University in Denver.
Hickenlooper’s office said it would not comment on Umphenour or the lawsuits, adding that the governor appoints about 1,200 people to more than 300 boards and commissions.
“All appointees are held to strong ethical standards while serving in their capacity as an appointee to a state commission or board,” spokeswoman Holly Shrewsbury said in an email to The Post on Monday. “The Administration does not comment, however, on actions taken by appointees acting outside of their official capacity.”
On the council’s website, Umphenour said her son has “multiple disabilities and special educational needs,” and has a service dog. Her council biography notes she once served on the Colorado Special Education Advisory Committee.
Although Umphenour drives a 2013 Jeep Patriot and earns about $4,000 a month, a federal judge recently granted her petition to file her lawsuits without having to prepay court costs — which can run hundreds of dollars — because she is too poor to afford it, court records show.
Carr is not a licensed attorney in Colorado, state records show, although he is licensed in Florida and is a member of the federal bar.
Umphenour’s lawsuits give Carr’s address as the UPS Store in Boulder. Although Carr is primarily a bankruptcy lawyer, one section of his website says ADA Justice Advocates is an “experienced ADA law firm” with more than 1,000 ADA cases and “extensive knowledge of the pervasiveness of ADA violations across the state.” A check of ADA lawsuits filed across the country shows Carr has filed only Umphenour’s cases in Colorado.
Serial plaintiff ADA cases have drawn national criticism and efforts at reform, although none has succeeded.
“These are abusive lawsuits,” said Ken Barnes, executive director of California Citizens Against Lawsuit Abuse, which advocates for change in how ADA suits are brought. The suits generally focus on Title III of the act, which deals with public accommodations and commercial facilities.
“They all follow a standard formula and are very lucrative to the lawyers. It’s become a perfected business plan for unethical lawyers that’s pretty much an extortion scheme,” he said.
Tales abound of business owners saying they feel hijacked into settling the cases – sometimes for violations that did not even exist – because they were not offered a warning or given the chance to fix the violations.
Raffaele and Carmela Aiello of Original Pizza in Broomfield were sued by Umphenour on Jan. 2. It’s the first time they’ve faced a lawsuit in the 26 years they’ve operated out of the building they own, they said. The natives of Italy said they were contacted by a paralegal working for Carr who said it would cost about $3,000 to settle the matter out of court.
“Why should I do that?” said Raffaele, 61. “They say we have no handicapped parking, but we do.”
Just outside the pizzeria’s main entrance is a large handicapped parking spot with a sign in the window and a partly worn, large blue-wheelchair logo painted on the asphalt.
Umphenour claims in the lawsuit to have visited Original Pizza on Nov. 20 – a Sunday. The suit said Original Pizza does not have protective coverings on the pipes beneath the bathroom sinks to prevent accidental burns, per ADA regulations.
“I’m not sure how they would know that because we are closed on Sundays,” Carmela said. “But why doesn’t someone come to us about that first? To point it out so we can fix it.”
The family-owned business has a loyal clientele, with photos of former Gov. Bill Ritter on the wall among other public figures who have eaten the couple’s home-recipe pizza.
The lawsuit says: “Without judicial intervention, plaintiff will suffer a real and imminent threat of encountering defendant’s accessibility barriers in the near future.”
The words echo 71 lawsuits filed last year by Santiago Abreu, a disabled Floridian who travels to Colorado frequently. The lawsuits he filed were against businesses from locations as varied as Colorado Springs, Breckenridge and Denver. Nearly all of Abreu’s lawsuits were settled out of court for undisclosed terms, records show.