Jaime Gonzalez built a bathroom to make his restaurant ADA complaint

The owners of Elsy’s Restaurant on Mission Street have faced their share of roadblocks to operate in San Francisco.

For reasons that are still unclear, the San Francisco Planning Department delayed Elsy’s opening for eight months in 2006. In 2008, a corrupt restaurant inspector asked them for money in exchange for a food handler’s certificate. The inspector was later fired by the Department of Public Health. Finally, in 2009, they thought they would be able to focus on their Salvadoran cuisine.

Then in January 2010, noted serial litigator Thomas Frankovich sued Elsy’s for an alleged violating the 1990 Americans With Disabilities Act (ADA), which requires buildings to be accessible to people with disabilities. The lawsuit alleged that Craig Yates, who is paraplegic, had difficulty accessing Elsy’s cashier counter and bathroom.

As with most of the lawsuits filed by Frankovich, Elsy’s owners decided to settle and make the required alterations, which involved lowering the cashier counter about eight inches and building a new wheelchair-accessible bathroom. The old bathroom was in a back room near the kitchen and required negotiating a small set of stairs.

“All of this cost us money,” said owner Jaime Gonzalez, detailing the list of expenses: about $100,000 for the fixes and $17,000 to settle the lawsuit.

They aren’t the only ones. Frankovich has sued at least 23 businesses in the Mission since January 2010 — most of them small, minority-owned restaurants.

They join the thousands of businesses up and down California that Frankovich has sued for ADA violations.

“It can be the Mission, it can be the Tenderloin, it can be in the Embarcadero; if it’s not accessible, we will be there,” said Frankovich in an interview from his home in Mazatlan, Mexico. “Who do we sue? Off the top of my head, there are so many places that I couldn’t tell you.”

Critics say Frankovich violates the spirit of the law and is only interested in the settlement money he shares with the plaintiffs. Settlements can cost up to $20,000, according to the city’s Small Business Commission.

Typically Frankovich’s plaintiffs send a letter to business owners recounting their experience at the shop and asking that the ADA violations be remedied. If the establishment fails to respond, Frankovich files a civil rights lawsuit asking for damages under the state’s Unruh Civil Rights Act, enacted in 1974. The act provides statutory damages of $4,000 per visit.

Gonzalez said he answered the letter, apologizing and promising to fix the problems, but was sued soon after sending his letter. It’s unclear how much of the $17,000 settlement Frankovich received, but a 2007 SF Weekly article reported that a Los Angeles attorney fighting a similar lawsuit found that in previous cases the plaintiff walked away with $4,000 and Frankovich took about $20,000.

Most business owners sued by Frankovich refused to speak on the record and did not want their names to appear in an article associated with accessibility lawsuits.

Such ADA lawsuits have caught the attention of Senator Dianne Feinstein, who this week wrote a letter to state Senate President Pro Tem Darrell Steinberg (D-Sacramento) stating that the lawsuits are “shakedowns” that “threaten the viability of small businesses in our state.”

Last year state legislators considered a bill that would give business 120 days to remedy violations, but that failed to pass and now there is talk of proposing a 90-day “right-to-cure” period.

For now, Frankovich has the law on his side. Feinstein has said that if the state does not remedy the situation, she will ask Congress to take up the issue.

“I will consider introducing legislation in the U.S. Senate if this problem cannot be solved by the California State Legislature,” Feinstein wrote.

For struggling businesses in the Mission, being sued is a daunting test.

“All the businesses on the corridor feel very defeated,” said the owner of a business on 24th Street.

Two owners, including Gonzalez’ wife, have become ill from the stress.

“If I had known this would happen, I wouldn’t have opened a business in San Francisco,” Gonzalez said.

But Frankovich has no sympathy for businesses like Elsy’s.

Tenants, he said, know that landlords have passed the costs of lawsuits on to them.

Buildings have been out of compliance for years, Frankovich said. In his view, he’s making them accessible.

“I’ve been doing this almost 20 years,” he said. “It’s like us being in Afghanistan — is it ever going to end? No. People don’t want to do anything until they have to do it. Don’t you think they should have figured it out by now?”

Gonzalez and other business owners say that no one in the city bureaucracy warned them that their locations were out of compliance.

Currently the Small Business Commission is conducting outreach to businesses, but it has only two staff members for the entire city, said executive director Regina Dick-Endrizzi.

One of the biggest mistakes businesses make, Dick-Endrizzi said, is ignoring the letter that typically precedes that lawsuit.

“Once you get sued, you are going to pay money.”

In addition to informing businesses about how to comply with the ADA, the commission is providing small business loans to make the necessary fixes. On Tuesday, San Francisco Mayor Ed Lee committed an additional $1 million to the fund.

Elsy’s Restaurant reopened in March after being closed for a month and a half to make the neccessary alterations, and the owners are hoping to move past the episode. Their 24-year-old son, also named Jaime, who has an accounting degree from UC Santa Barbara and a knack for business, has come back to help.

“It took a toll on the entire family,” said the younger Gonzalez. “Hopefully now we can focus on being merchants.”

The San Francisco Small Business Commission has a web page with information about what businesses can do if they are sued.

Rigoberto Hernandez

Rigoberto Hernandez is a journalism student at San Francisco State University. He has interned at The Oregonian and The Orange County Register, but prefers to report on the Mission District. In his spare...

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31 Comments

  1. a million dollar city contribution to the fund? why can’t the city help long time disabled or senior tenants stay in their apartments with a financial contribution also? the city could help them buy their apartments, which in turn would be reserved for low income buyers forever. keep the long time residents in their communities;Thats the key to s viable neighborhood.

  2. Frankovich doesn’t seem like the most likeable lawyer around, but what he’s doing apparently is fine with the bar association, and fine with Americans with disabilities and their supporters. It’s hard to imagine how anyone opening a small business anywhere in the US would be ignorant of the ADA requirements. Implying that Frankovich is targeting minority owned businesses is certainly disingenuous. Maybe it’s because non-minority owned businesses long ago got used to abiding by the law.

    1. Frankovich is indefensible. If he just wants to help the disabled then there’s no reason for the unproportionally large cut that he gets ($20,000 for him, $4,000 to the disabled plaintiff), and no reason why he settled for more than 4X the regulated fines ($4,000 fine per the law vs $17,000 that he pocketed). This is good old fashion shakedown. This is hideous and evil!

    2. All I know is that as an architect I once represented a San Francisco hotel that was a national landmark in getting the exceptions it was due as a landmark through the legal process. At the hearing the case before us was a sole woman proprietor who had a dog grooming business on Alabama or Shotwell in a 400 SF space. There was a 5 inch step at the front door. She barely cleared $20,000 a year and had $0 to make the kinds of structural changes to eliminate the step. No mercy was given. I suspect she actually had more income on welfare.

  3. The ADA is one of the most important pieces of legislation passed in the last 50 years. It protects a segment of society that is underrepresented and largely ignored.

    In addition, there is no dispute that most, if not all, of the businesses sued are in violation of certain portions of the ADA. I am happy that someone is using the private attorney general provision (Congressional designated) to enforce sections of the ADA against NON-COMPLIANT businesses (small/minority owned, notwithstanding.

    Just because following the law is expensive and at times cost prohibitive is not an excuse to not follow the law nor is it an event that justifies pity or sympathy. To put it another way, it probably increase profit margins to use spoiled meat and diary, but we also have laws prohibiting that too.

    As a final matter, I am not disabled and not a business owner. I am, however, someone who believes that the ADA should be followed and that noncompliance should be punished.

    1. NO ONE is saying we remove the ADA law. But the law SHOULD NOT allow for shake downs by unethical lawyers! Imagine if every time you’re caught jaywalking or double parked resulted in a $17,000 settlement!

    2. If I was a lawyer who cared about ADA, I’d simply ask the restaurants to adjust their bathrooms to fit ADA requirements and also chip in with the expenses of remodelling. Who would turn that down?

      1. Sometimes its not fixable without major structural changes to the building — for example the bathroom could be down a hall too narrow to comply, or the steps would have to be excavatated or there would be no space for a ramp (ADA compliant ramps are something like 1:12 so can take up a lot of space to go down just a foot or two). A $100K expense to fix a bathroom would put most small businesses out of business.

    3. we should repeal the ADA 100%. This is a total shakedown scam. Let’s not event pretend this is for noble purposes. Also we are talking about a minuscule percentage of the populations. Its the height of absurdity to demand that the whole world revolve around your personal issues….

  4. Thomas Frankovich is notorious for these types of suits. He hit a bunch in the Richmond district last year and caused a few to shut down. He was also suspended back in 2006 after a judge described his law suits as “abusive and predatory litigation practices”. He doesn’t care about disabled people, his client and himself are just out for a pay day. I listened to an interviewed with him on KGO by Ron Owens, the guy should not be allowed to practice.

  5. This whole process is corrupt.

    1. The City/Licensing body/Restaurant Inspectors have a responsibility *not* to issue licenses and permits unless there is compliance with the laws, including ADA. These owners *and* the disabled should turn around and sue the “officials” who licensed and permitted the businesses incorrectly.

    2. Ambulance chasers should be permanently removed from this process, and stop sucking money out of small business pockets. If there are fines or penalties, let them go into a fund for the loans to small businesses to they can upgrade to ADA standards. Inspect and permanently shut down any business that fails to comply within a reasonable length of time. Just this one ambulance chaser has sucked out more than enough money to pay for both inspectors and a loan fund.

    3. I suspect this is more a class than a “minority” – Big businesses and the wealthy have the wherewithal to purchase newer, accessible buildings. Small business people get the older, affordable and non-compliant spaces; and are silly enough to believe the “officials” and inspectors who tell them they’re good to go.

    1. That’s not true. The law is that a business must spend 20% of upgrade cost on ADA upgrades. A place does not have to come in to full compliance (per planning) with the ADA if the cost is prohibitive. If every business had to upgrade to be ADA compliant, the only businesses in SF would be high end restaurants that can afford the upgrades.

  6. Plenty of white small business owners get targeted/screwed by Frankovich. He is tarnishing the spirit of civil rights by championing its minutiae. It’s ridiculous that these things go to court. Health code violation? Deal with the city. Same for wage labor violations, environmental violations, etc. Such punishments are more moderate and happen faster to the betterment of both parties. By going to court, and having a drawn out process, the business owner is bled dry even before the case starts, forcing them to settle. This just encourages this behavior.

  7. I’m not sure why my comments are awaiting moderation why others have passed through. My comments were clearly on topic and appropriate. The only distinction is that my viewpoint. There is more than a bit of irony if you are censoring my comments due to my views.

    The ADA is one of the most important pieces of legislation passed in the last 50 years. It protects a segment of society that is underrepresented and largely ignored.

    In addition, there is no dispute that most, if not all, of the businesses sued are in violation of certain portions of the ADA. I am happy that someone is using the private attorney general provision (Congressional designated) to enforce sections of the ADA against NON-COMPLIANT businesses (small/minority owned, notwithstanding.

    Just because following the law is expensive and at times cost prohibitive is not an excuse to not follow the law nor is it an event that justifies pity or sympathy. To put it another way, it probably increase profit margins to use spoiled meat and diary, but we also have laws prohibiting that too.

    As a final matter, I am not disabled and not a business owner. I am, however, someone who believes that the ADA should be followed and that noncompliance should be punished.

    1. Bodah, I agree that the ADA is important. However, why not institute a “get your act together” period of 90 or 120 days as outlined in the proposed laws? That way the business comes into compliance and is motivated to do so quickly, and no one has to get sued.

      Or, why not make ADA violations be more like health, labor or environmental violations? Handled through commission and boards at city hall (which are all accountable to elected politicians) instead of a court system with very high financial barriers an no accountability. No one is suggesting that the ADA isn’t important. I think everyone is upset because litigation/settling is not a good vehicle for dealing with the problem.

      1. that is something you need to lobby through the political channels. As it stands currently, ADA violations are policed by the Federal government and private citizens. If you don’t like this, then lobby for a change in the law.

        But RIGHT NOW, violators are punished through the judiciary. Entities that fall under ADA’s coverage (no matter how big or small) must comply with its mandates or be punished. Period.

        1. Bodah, your comments come across as someone who agrees with what Frankovich is doing to businesses – comply or be punished, just another way to say pay up. I’m sure that all these businesses that were hit a comply or be “punished” order would go out of there way to help a disabled person access their business, but you don’t seem to care about that or what it takes to run a business. I’m just wondering if you practice what you preach, if so, you must be one outstanding citizen.

        2. yes and I’m sure you’ve never been out of compliance with the law… Perhaps we should drive-by your house and make sure you are in full compliance with all regulations, paying your full tax amount, etc. or slap you with a $25,000 fine….. Its ridiculous and this WILL be changed. There is not reason to be so punitive. I’m glad Feinstein is on it. We will lobby and we will get this changed so that no one has to pay a fine to unscrupulous lawyers in the future.

    2. The problem with the ADA is that any individual with a disability can sue a business that’s not compliant. There is no government agency that enforces the ADA law so therefore it’s flawed. Anyone with a disability can go out and purposely make money especially when you team up with an attorney like Frankovich,who at this stage, probably knows every little detail of the ADA law to pin a business.

    3. I’d hazard to guess Bodah’s submissions are from Mr. Frankovich himself. Not disabled (check), awfully defensive (check), yet knowledgeable (check), and completely unsympathetic to the repercussions to small businesses from these predatory lawsuits (checkmate).

      1. You have to ask yourself if these small businesses were ignorant of the requirement of making their new business accessible or if they hoped that they wouldn’t caught. I don’t dispute that the costs of removing architectural barriers can be large, but if you’re going to open a business, you have to do your due diligence.

        I think that the 90 to 120 day “get your act together” proposal is a good one. As a wheelchair user, I don’t want to see these businesses sued by this guy, I want to see them fix up their shop so I can patronize them.

        I have very mixed emotions when it comes to this lawyer. On one hand, I think that his actions give the ADA negative publicity. But on the other, these folks are breaking the law. And the law is there for completely legitimate reasons.

        The ADA doesn’t go far enough. Until I can get a wheelchair into a rest room on a domestic airliner, I say that there’s still work to do to end the barriers that impede the ability for the disabled to participate fully in society.

        If you live long enough or if you participate in sports, your chances of becoming a member of this class are very high, even if it’s on a temporary basis.

  8. My husband builds restaurants for a living. One of the hardest part is ADA compliance – It is endless as the laws change all the time. So even if you had the permits to open, if the law changed, you can get sued until you’re in compliance.
    However, from the looks of this place, it is amazing the Elsy’s even got the permits to open in the first place, & did not get shut down completely with the stairs going to the batchroom. Clearly the owners did not comply.
    Frankovich is nothing more than a shakedown artist & is a disgrace to the Bar.

  9. Having seen Frankovich’s name associated with many of these lawsuits I have always thought that he recruits people to go into businesses in order to entrap the owners. While few people would disagree with the regulations set forth by the ADA, one must keep in mind that many businesses throughout the city have been in operation prior to these regulations. With this in mind, I respectfully disagree with the poster who stated that the non-compliant businesses are minority-owned. The city would not give them a license to operate unless new owners, regardless of ethnicIty were deemed to be out of compliance..

  10. I know of a business affected and it really is a ridiculous shake down. This lawyer is looking for the violations because it’s big time payola for him. Luckily the people I know have been able to keep their business by switching gears. Rather than spending a few hundred thousand dollars in a low margin business to serve the public, they’ve decided to become suppliers. Again- a minority, women-owned food business. It worked out for them but not without aggravation… whenever I see people in wheelchairs, I have to admit, they make me angry. So many concessions made for a segment of society that contributes very little. Between stopping to pick up people and carting them onto the bus to pushy legless people wanting seats at the movies, can’t they just stay home and stop inconveniencing the rest of us. Thanks ADA! Sorry about your disability but why should society at large have to pay for the bad hand they’ve been dealt?

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