‘Serial Plaintiffs’ Do Battle With Small Businesses Over ADA
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.
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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