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‘Serial Plaintiffs’ Do Battle With Small Businesses Over ADA

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Vikas Patel stands outside his EconoLodge motel in Santa Clara, Calif. He paid $20,000 to defend himself against serial ADA litigant John Ho, and his San Diego attorney, who have sued numerous mom and pop businesses for alleged ADA violations. (Karl Mondon/Bay Area News Group/MCT)

Vikas Patel stands outside his EconoLodge motel in Santa Clara, Calif. He paid $20,000 to defend himself against serial ADA litigant John Ho, and his San Diego attorney, who have sued numerous mom and pop businesses for alleged ADA violations. (Karl Mondon/Bay Area News Group/MCT)

SAN JOSE, Calif. — You’ve heard of painting the town red.

When John Ho rolled through San Jose, he went with blue.

On one fateful weekend in 2012, the Southern California man who uses a wheelchair and is paraplegic said he dropped in on nearly 80 small businesses in the South Bay that he deemed to have inadequate parking or access for those with disabilities. Then he sued them all, saddling economy motels, burger joints and other humble establishments with fat bills for lawyer fees, settlements and buckets of blue paint to bring their properties up to code.

While targeting some legitimate violations, Ho and other so-called “serial plaintiffs” across the country have been blasted by some for taking advantage of the law to line their own pockets, and applauded by others as champions for people with disabilities. But that debate aside, this much is clear: Ho’s legal carpet-bombing left scores of mom-and-pop establishments, some of them struggling to stay afloat, quickly out of tens of thousands of dollars.

“There are a lot of outraged people around here,” said Carole Rast, part-owner of Roy’s Station, a cafe on the main drag of San Jose’s Japantown. “First the restaurant across the street got sued because the front entryway allegedly wasn’t big enough for his wheelchair. Then Santo Market got hit for its bathroom and parking lot. Next he sued the Happi House Restaurant, and then just kept moving right through the neighborhood.

“A lot of us in Japantown are sitting here on pins and needles,” said Rast, “wondering who’ll be next.”

Ho and his San Diego-based attorney, Ray Ballister Jr. with the Center For Disability Access, aren’t the only ones suing up a storm. Because of state laws that make it easy for plaintiffs to seek damages and fees in disability cases, California has long proven fertile ground for the litigious who crank out dozens of lawsuits over alleged violations of the Americans with Disabilities Act, or ADA. In fact, California is now ground zero in ADA-related litigation, with an estimated 42 percent of all cases in the country filed in the Golden State.

And with each new filing, more questions arise about the efficacy and enforcement of a 24-year-old law designed to change the way society accommodates citizens with disabilities.

“This is a shameful abuse of a well-intended law,” said San Jose Councilman Sam Liccardo, who’s been working with business owners to fix ADA violations without huge cash payouts that threaten to sink their companies. “We know there are plenty of small businesses out there hanging by a thread right now, and these lawsuits don’t make things any easier.”

And while advocates such as Debra Sue Stevens with the Silicon Valley Independent Living Center applaud the ADA, even she admits that overly zealous litigators “give all of us in the disability community a black eye. Taking $10,000 from a small-business owner won’t help fix the problem of accessibility, so these lawsuits just end up draining the resources of the business owner.”

Ho, who according to court documents lives in the Southern California town of Rosemead, could not be reached for comment. His attorney did not return several calls seeking comment. But attorneys such as Tom Frankovich in San Rafael, who has made a very good living over the years filing lawsuits for clients with disabilities, says plaintiffs like Ho are actually doing defendants a favor.

“In the end, it’s going to be less expensive for any of the places Ho sued, and who settle quickly, than it would be if some more experienced ADA attorney got involved,” said Frankovich, who has represented clients with disabilities all over the East Bay and San Francisco. “So, as much as people don’t like to be sued, it may be to the business owner’s advantage because they’ve saved themselves a lot of money.”

Besides, Frankovich said, “if you ask a business nicely to fix something, they never do. Litigation is the only thing that gets anything done.”

One of his clients is Marshall Loskot, a wheelchair-using herb farmer whose website says he’s currently developing a “paraplegic accessible garlic clove separator.” Asked in a brief phone interview about his dozens of lawsuits, many in the East Bay, Loskot said, “Everything in law is confidential. I can’t tell you anything, not even my attorney’s name.”

Improvements demanded by plaintiffs like Loskot can come at a high cost to small-business owners. Vikas Patel said he was already working on a planned ADA-parking upgrade at his Santa Clara Econo Lodge when Ho showed up.

“Unfortunately, my wife died while we were working on it and in the meantime I got sued,” said Patel, who has owned the franchise since 1984. “These are good laws and they need to be followed, but when my attorney explained to them that we’d already done some of the work and we were in the midst of doing more, that wasn’t enough for them. They said, ‘That’s fine, but we still need to get paid.’”

The ordeal cost Patel nearly $20,000 in settlement and legal fees, along with the construction work at the hotel, where Ho had complained about a lack of proper parking spaces.

“It costs us quite a bit to run this place and the hotel business took a big hit over the past five years,” Patel said. “This lawsuit really hurt us; it didn’t put us out of business, but it definitely hit the bottom line.”

Disability lawsuits by the numbers

1990: The year the federal Americans with Disabilities Act was signed into law
25,000-35,000: Estimated number of federal and state ADA-related lawsuits filed over the past decade in California
42: Estimated percentage of all ADA-related cases nationwide filed in California
56.7 million: Number of Americans with disabilities as of 2012 (about 1 in 5)
30.6 million: Number of Americans who use a wheelchair, cane, crutches or walker, or who have difficulty walking

Source: U.S. Census Bureau; California Justice Alliance; Mercury News reporting

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Comments (7 Responses)

  1. Rahel Sivan says:

    What are disabled people living in a smaller community supposed to do? I appaud those who file against small businesses, as well as larger ones. Here in the midwest, NOTHING much is handicap accessible, at all. I am Deaf and need a motorized wheelchair. I cannot use the handicapped bathroom in our hospital – I get trapped in – the doors are too heavy for me to open…Nope, not all places have wall openers. I have complained – more than once. I am ignored! The “compliance” officer even refuses to answer me. If it happens here, imagine what the rest of the town is like…Even the local, Int’l, fast food chain is difficult to enter.
    I am a seniotr citizen, also. I do not drive. It is very difficult to even take a bus, here, because of my long, motorized chair — AND they can only accept one chair/bus. Half the town has no sidewalks, the rest have broken, narrow, or uneven sidewalks. It is extremely difficult to use a chair or even a walker on them. For a small-ish town, there is a lot of traffic by where I live The only place to easily travel in in the street. Traffic ZOOMS by, without regard for a wheelchair, bicycle or even pedestrian. Obviously, I must crod=ss the streets at some point – They all have “buttons’ to help. They are, however, way out of reach – even with a cane, they are too far away to trigger the light. The city is here; how can it be changed, now? I wish I had an answer. Finally, Sign-Language Interpreters. There is one in town. She works during the day, elsewhere, to survive . Only the doctors affiliated w/ the hospital seem to be willing to hire aone. The rest get away withoiut doing so. They simply say: “Go elsewhere, if you are not satisfied.” Sometimes that is not possible. The funny thing is that I moved here to get away from an even worse situation (in another state!) If the law won’t help, what else can we do? Have any of you ever seen the paperwork involved in filing an ADA complaint? I have a “terminal” degree in a good field – BEFORE I became Deaf, and I find it taxing to fill out. Imaginge those in less fortunate circumstances or non-English speaking people?? Remember ASL is NOT English!!

  2. Sue Keller says:

    If local zoning authorities or building permits offices did their own due diligence, than people like Mr. Ho wouldn’t have to police businesses who think it’s OK to discriminate against people with disabilities by limiting accessibility. With the outrageously high unemployment rates of people with disabilities, I’m surprised more disabled people don’t do exactly what Mr. Ho is doing. He’s making money to support himself while bettering communities. I have no problem at all with his actions. Business owners have had 24 years to become accessibility compliant.

  3. Debra says:

    Owning a business is not a right. Accessibility is a right. It’s the government’s responsibility to ensure that businesses are code compliant. If the government properly enforced current building codes, these types of lawsuits would diminish.

  4. EM Prentiss says:

    OK, I can feel for the businesses but have they had any good years since 1990? What have they done since then to recitify their business’ ADA violations? It is the responsibility not to simply pocket the cash but to esure actual accessibility happpens! I’m sure all these business know their responsibility regarding the health code, It is also their responsibility to know the accessibility codes!

  5. hallsofjustice says:

    If these business owners are so afraid of being sued because they are breaking the law, how about just FOLLOW the law. Then you won’t be sued. Seems rather obvious.

  6. Ali says:

    The ADA has been in effect for 24 years! The business owners should have made their businesses accessible years ago.

  7. ADAguy says:

    Please note that code compliant is not necessarily ADA compliant. ICC, ANSI and ADA Standards do not match in all areas. It is for this reason that IBC is not considered a “Safe Harbor” for ADA compliance. To date only 6 state building codes were certified as complying with the original ADDAG. States may submit to DOJ their revised codes for compliance verification. Does DOJ have adequate staff to do this in a timely fashion?

    Also note that as a minimum standard, not a code, DOJ is relying on the individual states to draft enforcing laws, codes and regulations to impliment the ADA. Enforcement activites are limited without these regulations being adopted.

    Ask your state attorney generals if your local building departments and code enforcement agencies (to whom we should be able to identify for enforcement those businesses which are non-compliant) are impowered to enforce compliance. Also note that codes for existing buildings do not mandate retroactive upgrades where no work is being done.

    The ongoing success of ADA implimentation is based on notice of the requirement to comply with The ADA.

    I suggest you Include in your annual business licences renewals, notices of the ongoing requirement to remove barriers and maintain existing compliance; require proof of compliance prior to issuing/renewing business licenses (a revenue stream for building departments & cities?) and consider as California has recently required, disclaimers by leasing agents of commercial spaces that they have/have not been inspected for access compliance. Failure to require this discloseure can be seen as an initial oversight of the ADA that in hind sight it could have minimized the inventory of noncompliant buildings since its inception.

    Access for all is good for business, the disabled have green to spend in “Blue” establishments.

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