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.”