Business Owners Fear “Drive-by” ADA Lawsuits

Certified Access Specialist Dwight Ashdown listens to lawyer Carole Conn at a Mission Merchants meeting

Certified Access Specialist Dwight Ashdown listens to lawyer Carole Conn at a Mission Merchants meeting

En Español.

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.”

Filed under: Business, Front Page

15 Comments

  1. fnf

    stop complaining and follow the law. the ADA’s grant of a private cause of action is GOOD thing.

    • jsonie

      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.

      • fnf

        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.

    • marco

      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.

  2. 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.

  3. jsonie

    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?

    • fnf

      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.

    • marco

      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.

  4. pobeb

    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.

  5. Celia

    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.

  6. pobeb

    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.

  7. 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.

Comments are closed.