The Mission Merchants’ agenda lists meeting with mayoral candidate Joanna Rees, and talks of making Valencia Street the “culinary fast lane of the West Coast.” However, the business owners present at the Tuesday meeting only want to talk about one thing: an increasing number of lawsuits for violations of the Americans with Disabilities Act by what they call “serial litigators.”
“There’s a group of predatory lawyers that use the law to their advantage and target small businesses, especially restaurants owned by minorities,” says Regina Dick-Endrizzi, executive director of the city’s Small Business Commission.
The Americans with Disabilities Act is a civil rights law enacted in 1990. It prohibits discrimination based on disability and requires that buildings be accessible to people with disabilities. A revised version of the law took effect in March 2011.
A series of complaints hit Mission Street businesses six or seven months ago, and now they’re back, Dick-Endrizzi says. Restaurants are especially targeted, she added, because there’s more money to be made. Those attending today’s meeting at Garçon appear to know this. Fear is in the air. No one wants their establishment named in an article about the ADA.
The name Frankovich comes up and it’s as if Lord Voldemort, the dark wizard of the Harry Potter books, has entered the room. Thomas Frankovich, a San Francisco-based litigator, has filed lawsuits against Chile Lindo, Café Gratitude, Elsy’s Pupuseria and Mikado Sushi, among other restaurants, for not providing wheelchair access.
“They do what I call drive-by lawsuits,” says Dwight Ashdown, a certified access specialist. “You want to be proactive. It makes it more difficult for them to file a lawsuit.”
Noe Valley merchants have been able to avoid lawsuits by educating their members about the steps that can be taken, and Mission merchants should do the same, Dick-Endrizzi says. An average lawsuit costs $20,000 in damages, she adds.
To guide businesses through the process, the city has set up a table with advice and takeaways. The most repeated advice: Request a CASP — certified access specialist — inspection to identify any problem areas in the building.
Requesting an inspection to receive a certificate of compliance is usually a good deterrent to lawsuits, lawyer Cris Ibarra says. “Once you engage an inspector, they put up a sign and usually that takes care of it.” An inspection shows that the building meets ADA requirements or that the owner is addressing the issues by working on improvements.
If you receive a complaint letter, Dick-Endrizzi says, call a lawyer and ask for help in responding.
One business owner wonders how Frankovich gets away with legal attacks that end up in out-of-court settlements with no changes in accessibility.
“All they have to do is show that there’s been some harm because of lack of access at the premises,” Ibarra says.
As certified access specialists and representatives from the Bar Association of San Francisco and the Opportunity Fund address the group of a dozen of business owners, everyone is quiet. The three pitchers of water and carafe of coffee sit unused.
“The best offense is a good defense,” says Carole Conn, the bar association’s director of public service programs.
No matter what business owners choose to do, they’ll have to pay. An inspection by a certified access specialist can set a business the size of Garçon back approximately $1,200. Settling an ADA complaint, on the other hand, can cost as much as $4,000.
“I’m a criminal because I’m a business owner,” says a business owner who doesn’t want his name to be printed.
“It’s all extortion,” says an officer of the merchants association. “Why is it that a regular toilet costs $100 and an ADA toilet costs $300? Because you have to buy one. I don’t think there’s more porcelain used to build it. Don’t get me wrong — everyone should have access to everything.”
When asked what he thinks about what the Small Business Commission is doing to address these issues, he says, “It sounds like it could help.” But, he adds, “these people aren’t crusading for accessibility, they’re profiteering on people’s disabilities.”
It’s interesting that we would never see an article like this – or a discussion like this by business owners – about how awful it is that people are complaining that restaurants don’t meet the Health Code, or that a clothing store blocks its fire exits.
Let’s be frank: The ADA has been in place for 30 years. This is not new. And much of compliance is not hard. But we have collectively failed, after three long decades, to consistently meet the requirements of the ADA. Whose fault is that?
And therefore, whose fault is it that people who choose to be serial litigants have so many opportunities to sue? Complaints about them are analogous to griping about the Highway Patrol giving you a speeding ticket for going 95 mph in a 65 mph zone. Sure, maybe it’s super annoying that you were caught in a speed trap (legal in CA, BTW), but why are you surprised? And who’s fault is it, really?
As a lifelong wheelchair rider and architect I see both sides of the coin. I am constantly faced with new buildings that don’t have the required low checkout area or reception desk, restaurants with newly-redone restrooms I can’t fit in or use for other reasons, entry doors that don’t meet basic accessibility requirements, and dozens upon dozens of other problems that prevent me from using places the same way that ambulatory people can. I’ve never sued for access, but if I had a dollar for every time I patiently explained how to fix an accessibility problem to a business owner over the last 30 years, I’d be a rich man.
And if I had another dollar for each time I go BACK to those businesses and see absolutely no improvements, I’d (sadly) be almost twice as rich. I’d rather they fixed the problems so that I can just use the dang restroom.
As an architect, I see the profession sometimes uninformed and often leaving important details to contractors to work out in the field, which often doesn’t work well.
There are lots of reasons that businesses don’t meet the ADA, but few good excuses. We should not even be having this discussion 30 years after these requirements became national law.
So how much longer am I (or other people with disabilities) supposed to wait to know that I can go to a restaurant and use the restroom without having to seek out an accessible one next door? How much longer am I supposed to wait to be able to carry out a transaction to buy something and not be behind a checkout counter higher than my head, where I can’t use the point of sale device or even see the clerk? How much longer am I supposed to wait before an easily-ramped single step at an entrance gets a ramp, rather than being having to phone the business from the street and have an employee usher me to the accessible rear service entrance or being told that employees can carry me up the front step? I mean…are you serious?
Most people like me, confronted with inexcusable inaccessibility every day, have never sued because of it. We cope, get frustrated, and get left out. But what if we sued -every- time we encountered a violation? I imagine that would make a difference. To use the speeding analogy, would businesses prefer a lawsuit absolutely every time they go over 65, or would they prefer to play the odds and risk getting caught in the speed trap of a serial litigant? It’s been 30 years. The disappointing built environment reveals the collective choice we’ve made. Sorry, folks – you don’t have much right to complain about your own non-compliance.
So although I deeply dislike certain lawyers and serial litigants who are after a quick buck, we all need to readjust our thinking and realize that we as a society have created the situation where these people have so many opportunities for lawsuits. Remember that the ADA is a Civil Rights Law, not a building code; it was written to promote equal access to and enjoyment of the built environment for everyone, regardless of ability.
To that end, merchant groups need to be meeting not to talk about protecting themselves from predatory lawyers, but rather about how they can improve their businesses (and their neighborhoods) to be more equitable and more inclusive. I could go on about Universal Design and all the things that can be done to go beyond the ADA’s basic requirements, in order to create an even more comfortable, more inclusive, more usable environment for everyone (with or without a disability)…but please, let’s at least start by actually embracing and conforming to the 30-year-old ADA requirements and not blaming others for catching our collective non-conformance.
As the father of a child in a wheelchair and a resident of the Mission, I am grateful that there are people out there ensuring the ADA is followed.
There are numerous places in the Mission and the rest of SF where my son and I simply cannot go. The aisles are too narrow, or there are stairs up to the doorway, etc. I don’t have the time or energy to bring it up with every business owner out there, so I’m glad someone is doing it.
To the business owners worried about a $20,000 lawsuit: Like the article said, an inspection by a compliance professional, followed up by necessary access improvements, should cover you. It’s like ensuring you have running hot water and soap in the bathroom: a cost of doing business.
If you’re a businessperson who want to protect yourself, first thing you absolutely must do is ADA-proof your entrance and parking lot (if your store has one). You can download the ADA guide online and go thru it yourself. Many of the extortionists don’t bother to enter the stores, they simply drive around and look for parking lots and/or front door entrances that don’t comply to ADA code and then they make up stories about how they tried to enter the store but was inconvenienced. So if your parking lot and entrances are sound, many of these extortionists will just move on and look for their next victim elsewhere.
Our business in Noe Valley has been targeted by these people too – they’re all from Santa Rosa. I think the trick is for all us merchants to send response letters that are like form letters, so these extortionists understand we are on to them and know the roadmap. There are simple things most of us can do to comply – they’re greatest hope is that we ignore their letters.
Yes, there are “simple things” you can do to prevent accessibility-related lawsuits – make sure your building/business is accessible and in compliance with both State and federal access codes and standards!
SIMPLE!
My aunt, who is a county judge, straight up told me that ADA laws are intended for private businesses to supplement the disabled because the government cannot afford to do so. They easily could have written the law to be more reasonable and more open to preventive measures but that wasn’t the intend. And no politicians would ever dare to challenge this law least it make them look like cold-blooded cobras.
Best to comply ahead of time and not let these vultures extort. I never really thought about the ADA before these questionable legal practices but because of them I am absolutely for reforming or REPEALING them.
Any regulation used as a tool for extortion and whose primary purpose is to help people gain profits from violators of the regulation should be eliminated.
Whatever section of regulation within the ADA that allows these lawsuits and damages, at a minimum, should be repealed. But maybe the whole ADA merits a second look eh?
jsonie didn’t say repeal the ADA laws, jsonie said that the section that allows for the extortion that has clearly been going on should be repealed.
Actually, he said “the whole ADA.”
But if you repeal only the section that allows private enforcement, you might as well repeal the entire law, because no enforcement = no access.
wow, repeal the ADA? WOW. ADA is one of the most important laws protecting civil rights. This is coming from someone who does not have a disability under the ADA. Just because the law is not circumventing racial/gender discrimination does mean it is not of critical importance to a just society.
The ADA as it’s written allows these drive-by litigators to extort small businesses. A very small minority of the disabled community target businesses they think they can extort into settling. This shows that they are not interested in making businesses more accessible, they are simply interested in lining their pockets. This harms our small businesses that make up the backbone of our local communities. The ADA is a necessary and well-intentioned law, but but is too unbalanced in favor of serial litigants.
The ADA is unusual in that there’s virtually no enforcement of the law except for these private lawsuits. Basically, the law is structured to empower private individuals to act as cops policing the law. The alternative would be to fund another branch of the State DOJ to go out and fine businesses who are out of compliance.
What would you rather have: serial private litigants, or inspectors coming to your business once a year and fining you? (The other option, no enforcement, would put wheelchair users back where they were before the ADA: with no access).
As to your assertion that these people are serial litigants who are not interested in making business more accessible: do you have any reason to think that’s true? The serial ADA litigants I have encountered are in wheelchairs and are seriously enraged at the fact that they are constantly barred from businesses, and have made it their life’s work (and, yes, maybe their income source) to go out and make sure the ADA is followed.
Well said. Thank you.
Accessibility in the built environment isn’t always easy to provide, but not making the built environment accessible excludes millions of Americans who for one reason or another, live with a physical or cognitive disability. Should they not be allowed to function within their communities or within America?
Before I became a person with a disability at the age of 34, I had no idea what accessibility meant. And, for almost 20 years, I managed a major San Francisco restaurant (intentionally not named) that had stairs to get into the dining room and bar with no accessible means of access. And I would stand at the top of the stairs and tell a senior/person with a disability who couldn’t climb stairs how sorry I was but there was no way to get them up the stairs. As an upwardly mobile white male with a wife and two young children, I had no experience and didn’t think about discrimination. The inaccessibility of the restaurant was just that and there would be nothing done about it!
Then, I had an accident and became a T12/L1 paraplegic who uses a wheelchair for mobility. Boy, was that an experience. When my wife and I would meet people, they would talk to her but not me, as if I wasn’t there. It was an quick, nasty, in-depth education about what it’s like to be a person with a disability.
Sure, you can say, well that was your fault. Why should businesses have to make their facility accessible for you? Well, I guess one could say that, but what about the many thousands of those who were born with a disability, Was that their fault? And, as a society, do you really want to base people’s rights on fault?
In any case, maybe access could be created differently. Maybe access could be funded, for existing businesses in buildings that haven’t been remodeled, by a federal grant. Maybe there are other alternatives. But the fact is, state and federal access codes and standards ARE THE LAW OF THE LAND, and like any other law, when you don’t comply with it, there are usually fines or jail time.
I know that a few years ago, the Equador government decided they would no longer require building permit, but would require building owners and architect/contractors doing projects in existing buildings or building new buildings to sign a letter that once completed, if the building didn’t meet all required codes and regulations, the building owner and architect/contractor could be fined, the owner, depending how bad the violations were could lose the building, and, each could be sentenced to a period of time in jail! Would that work here in the United States? Would building and business owners agree to that process? I don’t think so!
So, I strongly suggest that all building/business owners become better aquainted with basic state and federal accessibility codes and standards and hire reputable architects and contractors and welcome disabled customers who will spend their money just like customers who don’t live with a disability.
If you would like, I would be happy to share a design document I created a few years ago after retiring from the City of San Francisco as the Deputy Director of the Mayor’s Office on Disability I helped create at the request of then Mayor Willie Brown. The document is called the Designing Accessible Communities Restaurant Accessibility Field Guide. I specifically designed it for business owners who aren’t State Building Code or federal Standards experts and I believe is easy to use and understand.
You can send me an email at: richardskaff1@gmail.com and request a copy. I don’t charge for the document. Hopefully it will help you better understand what basic accessible features you might consider having in your business (the Guide can be used by all businesses, not just restaurants).
stop complaining and follow the law. the ADA’s grant of a private cause of action is GOOD thing.
These ADA lawsuits abuse the disability laws that are on the books and will only serve to water down those laws. Some buildings, particularly those that have been around since the 1800’s, can not practically comply with ADA laws. Efficiency needs to be considered when ADA compliance is discussed. The best example of this is the when Michela Alioto-Pier insisted on having a ramp build to access the board chamber’s main podium — at a cost of more than $1 MILLION. She can’t speak from elsewhere in the chamber in order to save the city ONE MISSION DOLLARS? Nope, because she has the “right” to the ramp under the ADA laws. That’s the kind of stupid these ADA laws encourage.
Three things.
1. Buildings built in the 1800s do not have to comply. If you modify the building, then you have to comply only with respect to the modifications you are making.
2. City hall is a government building — different section of the ADA with tougher guidelines, so really doesn’t apply to this post about private businesses.
3. Don’t blame the ADA because some connected contractor convinced the city to spend $1 mil on a ramp. I got an ADA ramp built for my house for less than $1,500, and it could probably be done for even cheaper.
Your response doesn’t take into account the ongoing obligations triggered by the Americans with Disabilities Act. Since 1990, public buildings and private businesses open to the public are required to, over a reasonable period of time (those modifications were supposed to be completed by 1996!) , make reasonable modifications to the building they are in (or the building owner, depending on the contract between the building owner and business owner) to assure that customers with disabilities would be able to access the public programs (in publicly owned buildings) or goods and services (in privately owned buildings open to the public). Of course, that expected compliance never happened. But the requirement still stands today. And it even covers historic buildings! They are not exempt from the accessibility requirement of the California Building Code, Title 24, the California Historical Code, and the Americans with Disabilities Act.
how is it a good thing, exactly? So a handful of people can see the burrito bar at Chipotle’s??? Does that really matter? Get over yourself.
The private right of action increases compliance with the ADA. It forces deficient businesses to take remedial steps to correct said deficiencies. It sounds like you have a problem with given those with disabilities equal access. Shame on you.