# Wave of disability lawsuits threatens small businesses in Stanislaus County



## mark handler (Jun 22, 2014)

Wave of disability lawsuits threatens small businesses in Stanislaus County

BY GARTH STAPLEY

gstapley@modbee.comJune 21, 2014

http://www.modbee.com/2014/06/21/3403269/wave-of-disability-lawsuits-threatens.html

A rash of discrimination lawsuits against small businesses appears to be spreading south from Sacramento through Stockton, Manteca and Ripon to Stanislaus County’s literal doorstep.

The latest wave swamped Barnwood Restaurant, a familiar Highway 99 sight that closed a few days ago after its owners were sued by a disabled woman claiming that its parking lot and bathrooms weren’t wheelchair-friendly.

The woman has brought 25 such lawsuits in the past two years, a Modesto Bee review found, including 15 this year and five in the past month.

Her Stockton attorney said he has filed about 46 recent cases alleging violations of the Americans With Disabilities Act. None targeted companies in Stanislaus County, he said, but added that he simply responds to clients’ complaints and does not control where they operate.

“I do believe the disabled have a right to equal access and it’s not something people should take lightly,” attorney Daniel Malakauskas said.

Others see mass production of legal challenges as a shakedown, often aimed at small-business owners whose easiest solution may be coughing up a few thousand dollars to make a threat go away.

“This is big money for these people,” said Rick Morin, a Sacramento attorney whose website encourages people to “fight baseless demands.”

Assemblywoman Kristin Olsen, R-Riverbank, noting the southward march of lawsuits, said professional plaintiffs are “on a rampage.”

She is sounding a warning to companies that might find themselves on the wrong end of “get-rich-quick schemes, where they’re literally driving by a storefront and taking pictures. It has nothing to do with a desire for getting things fixed and everything to do with generating income.”

In the Barnwood’s case, nothing got fixed, those suing got nothing and Ripon ended up with one less restaurant.

“We dumped every penny we had into the place and had no money to fight this,” said Don Lee, who took over the eatery with co-owner Ken Hildebrand about a year ago. “We were stuck, so we decided to close the doors.”

Lee said a server last month noticed a woman taking pictures outside, and three days later, he and Hildebrand were served with the lawsuit.

The document identifies Cynthia Hopson as a special education teacher who uses a scooter. The lawsuit found numerous faults with the Barnwood’s parking spaces, handrails, wheelchair ramp, entrance and restroom access.

“She never even tried to come in the building,” Lee said. “They don’t really care whether they’re fixing things for ADA. What they really care about is their little payday.”

Hopson also sued Escalon City Hall last year, saying she and her husband “encountered barriers” that interfered with watching their grandson’s soccer game at a city park. They visited five other city facilities and put problems with all in a federal complaint.

Dozens of media reports over many years have profiled a handful of California attorneys specializing in ADA action, including a 2006 Sacramento Bee review of 10 who had filed thousands of lawsuits. A Carmichael paraplegic attorney named Scott Johnson, for example, routinely settled cases for $4,000 to $6,000, while Chico attorney Lynn Hubbard III typically asked for $40,000, the paper found.

Olsen said one local defendant was asked to pay $78,000.

Malakauskas said he was introduced to ADA representation by another attorney and is not affiliated with Johnson or Hubbard.

A Lawyers Against Lawsuit Abuse website says it’s tempting for companies “to quickly pay an extortionate settlement and get back to business.”

“The intent (of ADA) was sound – making sure disabled members of our community can access businesses and facilities,” Olsen said. “But it’s been so abused that it’s hurting everyone, and the only thing it’s doing is lining the pockets of greedy attorneys and those who would victimize small-business owners.”

Barry Smith, executive director of the Modesto-based Disability Resource Agency for Independent Living, has a unique perspective. Disabled in an accident as a youth, he uses a powered wheelchair when conducting the nonprofit’s business in Stanislaus and San Joaquin counties and the Mother Lode.

“When you can’t access a facility like anybody else, it’s discrimination,” Smith said. Businesses “have had – what? – over 20 years now to be in compliance,” he said, referring to the Americans With Disabilities Act, passed in 1990 and implemented in 1992.

Older companies, such as the Barnwood – built in 1978 with sideboards recycled from area barns to make it look much more aged – do not enjoy grandfather exemptions.

However, Smith bristles at what he calls “drive-by” lawsuits. He prefers gentle encouragement, working with companies needing improvements and offering low-cost compliance surveys meant to save money, not extort it.

“Independent-living centers do not appreciate drive-bys,” Smith said. “It’s not right, it makes the community angry and it’s not good publicity for people with disabilities.”

Brad Wungluck said companies in Manteca, where he is the city’s senior building inspector, have been hit with 35 lawsuits in 11 weeks. He and Olsen urge business owners to consider hiring a state-certified inspector through the Construction-Related Accessibility Standards Compliance Act; proof of consultation can provide some legal protection from nasty legal letters, they said.

But Morin, the Sacramento anti-abuse attorney, said sue-happy lawyers are getting around that by going straight to court, with no attempt to work things out by a letter or phone call.

Malakauskas said he’s not trying to put anyone out of business. “In my experience,” he said, “demand letters don’t work. They just throw them away.”

Wungluck said it’s easy to find ADA problems. He recently stood in a Modesto coffee merchant’s parking lot, looked about and observed eight probable violations, he said; that could represent a $32,000 payoff, he said, because California law permits minimum damages of $4,000 per ADA violation.

Malakauskas said, “Generally, people view this as a shakedown when it doesn’t affect them. How many would be sympathetic to a business owner who said, ‘Well, if I have to get rid of all the cockroaches in my kitchen, I wouldn’t be able to stay in business’?”


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## ICE (Jun 23, 2014)

The lawsuits represent a pinprick on the collective business rear.  Businesses are like pigeons.  As long as only a few get eaten the flock will be fine.

I'm surprised that an insurance company hasn't discovered a niche market.  Perhaps they have but they expect that the government, having created a law that produces asinine results, will undo their mistake.

There doesn't appear to be any disagreement that the lawsuits are extortion.  There are some in the disabled camp that endorse the lawsuits as a tool to scare business owners but even those misled miscreants see it for what it is....extortion, pure and simple.


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## mark handler (Jun 23, 2014)

Some buisnesses in my city have said their insurance companies have a clause that requires a CASp report or they will not be covered by the insurance company, for accessibility lawsuits


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## Msradell (Jun 23, 2014)

I thought California changed this law last year so that he couldn't sue a business without giving notice 1st and giving them a chance to correct the problems.


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## mark handler (Jun 23, 2014)

Msradell said:
			
		

> I thought California changed this law last year so that he couldn't sue a business without giving notice 1st and giving them a chance to correct the problems.


Not true:

California Civil Code, §§ 55.3 et seq.

What the Bill Does:

It bans “demand for money” letters by lawyers, i.e., requests for money or offers or agreements to accept money before a lawsuit is filed

*It limits prelitigation “demand letters”* to allegations that the site is in violation of one or more construction-related accessibility standards with an offer of prelitigation settlement negotiations, but the letter may only state that the property owner or tenant “may be civilly liable for actual and statutory damages for a violation of a construction-related accessibility requirement”

It requires attorneys to send a written advisory with each demand letter or complaint sent to a defendant or potential defendant

It requires claimants (or their attorneys) to send a notice letter listing the alleged construction-related violations in sufficient detail to allow a reasonable person to identify the basis for the claim 30 days before filing suit,* allowing time for correction of any deficiencies, but does not sqash lawsuits*

It requires attorneys to submit demand letters and complaints to the California Commission on Disability Access (CCDA) and to the California State Bar, or risk disciplinary action, and it also encourages property owners to send demand letters to the State Bar

It deters plaintiffs from “stacking” claims based on multiple visits to the same business by requiring courts to consider the reasonableness of the plaintiff’s conduct in light of plaintiff’s obligation to mitigate damages

It permits the following defendants to file a request for a court stay of the litigation and early evaluation conference:

(1) A defendant whose site's new construction or improvement was approved pursuant to the local building permit and inspection process between January 1, 2008, and January 1, 2016

(2) A defendant whose site's new construction or improvement was approved by a local public building department inspector who is a certified access specialist (CASp); or

(3) A defendant who is a small business

It significantly reduces damages recoverable against businesses to:

(1) $1,000 for each offense if the defendant has corrected all construction-related violations that are the basis of the claim within 60 days of being served with the complaint2

(2) $2,000 for each offense if the defendant is a small business and has corrected all construction-related violations that are the basis of the claim within 30 days of being served with the complaint

It requires commercial landlords to disclose on their lease whether their buildings or properties have been inspected by a certified access specialist


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## ADAguy (Jun 23, 2014)

Read between the lines, Some suits pre date 12/13, after that date the $4000 per incident is off the table. Much of this is fire fanning.


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## steveray (Jun 23, 2014)

"It has nothing to do with a desire for getting things fixed and everything to do with generating income.”......Sounds like most businesses, governments, large corporate entities,etc.....


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## mark handler (Jun 23, 2014)

steveray said:
			
		

> "It has nothing to do with a desire for getting things fixed and everything to do with generating income.”......Sounds like most businesses, governments, large corporate entities,etc.....


If people would employ the disabled, they would not have to seek out money making schemes


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## steveray (Jun 23, 2014)

mark handler said:
			
		

> If people would employ the disabled, they would not have to seek out money making schemes


True enough....It's the unscrupuous lawyers I don't care for...I am not a big fan of profitting from other peoples misfortunes....


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## mark handler (Jun 23, 2014)

steveray said:
			
		

> ....It's the unscrupuous lawyers I don't care for...I am not a big fan of profitting from other peoples misfortunes....


True enough....


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## MASSDRIVER (Jun 23, 2014)

mark handler said:
			
		

> If people would employ the disabled, they would not have to seek out money making schemes


So who here is walking the walk?

Brent.


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## mjesse (Jun 23, 2014)

MASSDRIVER said:
			
		

> So who here is walking the walk?Brent.


I hired a blind carpenter once.

At least I think he was blind, he couldn't cut for sh*t

.

Is alcoholism a disability? Had a few of them working for me too.

mj


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## MASSDRIVER (Jun 23, 2014)

mjesse said:
			
		

> I hired a blind carpenter once.At least I think he was blind, he couldn't cut for sh*t
> 
> .
> 
> ...


 "37 and 1 long line and 3 little lines..."

If you can't drink you can't work homey. I got stories brother.

Brent.


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## steveray (Jun 24, 2014)

How do you keep the bubbles in your level from freezing if you don't fill it with whiskey?


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## ADAguy (Jun 24, 2014)

Gentlemen? some of you are "teetering" on a razor edge.


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## mark handler (Jun 28, 2014)

Main Street Inn building bathroom for handicapped

http://www.mantecabulletin.com/section/171/article/109198/

By Glenn Kahl

Reporter gkahl@mantecabulletin.com 209-249-3539

June 27, 2014

To become compliant with laws of the Americans with Disabilities Act (ADA) Ripon’s 70-year-old Main Street Inn and its owner Joan Corso have decided to spend $50,000 to construct a completely new restroom for the access of disabled clientele.

Corso said she had received a letter from Lodi attorney Russell S. Humphrey in January advising her that his law firm was investigating her business regarding alleged ADA violations.

The letter read: “When our client visited your location, he noted that there were multiple ADA violations with regards to the accessibility of the restrooms in your business. Our client is handicapped and uses a wheelchair and when he visited your location he struggled to use your facility’s restroom. In order for our client and other disabled members of the community to be able to fully enjoy your business, the bathrooms must be altered to comply with the ADA Standards for Accessible Design.”

The attorney’s letter concluded, “Our client’s hope is that your business can bring its property into compliance within a reasonable time period or else they will be left with no other option but to proceed to court and seek all appropriate remedies including costs and attorneys’ fees.”

Corso said she knows of no occasion when a handicapped person was unable to access her 8-by-10-foot restrooms. No one has complained, she recalled. Corso added, a normal-sized wheelchair fits through the restroom doorways. However, the larger battery powered chairs would have an access problem.

The owner of the Inn said she has contracted with a professional contractor to build a separate handicapped restroom to be in addition to the present facilities. It will be located to the rear of the men’s and women’s restrooms, just to the rear of the lounge. She said she had planned to upgrade the business with new carpets and fixtures but with the cost of adding the new ADA restroom that will not be possible as it will require jack hammering the concrete floor, hooking up to the sewer and updating the electrical service to the addition.

She said she has learned that her bar actually dates back to the 1920s when it was a small café attached to a repair garage business that worked on Model A Fords.


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## ICE (Jun 28, 2014)

mark handler said:
			
		

> It will be located to the *rear* of the men’s and women’s restrooms, just to the *rear* of the lounge.


She'll probably get sued anyway.

This was approved years ago.  The stripped part of the ramp is 18.7% slope.  The concrete section is 12% slope.



https://flic.kr/p/nQSLsR  [/URL]

A TI with a valuation of $20,000.00 is underway.  No ADA improvements are planned.  The owner is aware that he is open to a lawsuit.  He asked me what he should do.  I told him that I don't give business advice.  There isn't enough parking lot or money to change it up to chapter 11 compliance.


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## mark handler (Jun 28, 2014)

ICE said:
			
		

> She'll probably get sued anyway.


I'll bet it won't include the restroom



			
				ICE said:
			
		

> .... I don't give business advice.


Thats a good thing


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## ADAguy (Jun 30, 2014)

Photo obviously not a CA location?

1. No wall/post signage.

2. No 12" no parking in access aisle

3. Access aisle on wrong side for a van in CA ( if flipped slope grades could be corrected.)


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## mark handler (Jun 30, 2014)

ADAguy said:
			
		

> Photo obviously not a CA location?


You cannot tell 1/3 of all parking I see in CA does not meet current code.


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## ADAguy (Jun 30, 2014)

Unfortunately so true.


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