San Mateo County businesses are on high alert after dozens were served with lawsuits alleging the establishments are in violation of the Americans with Disabilities Act, federal legislation intended to protect access to public spaces for those with disabilities.
“My feeling is I finally see a light at the end of the tunnel and somebody is trying to close it,” said Kakey Chang, owner of My Breakfast House in San Carlos.
Chang has successfully owned and operated the eatery at 1137 Laurel St. for 10 years. A carefully maintained savings account helped the business survive the pandemic amid abysmal revenue streams, no staff beyond her and her boyfriend and uncertainty for a social and economic recovery.
She started to feel hopeful again as the region reopened, welcoming customers to her new outdoor dining space and eventually back indoors. But her spirits were hit hard in June when she was served with a lawsuit demanding $25,000 in damages for breaking ADA requirements.
The lawsuit, filed by attorney Amanda Seabock on behalf of her client Scott Johnson, an attorney and quadriplegic, asserts he was barred from dining at the restaurant because the establishment failed to offer wheelchair accessible tables inside and outside. The lawsuit goes on to assert the tables failed to provide adequate knee and toe clearance for customers in wheelchairs.
“You feel like oh by god, everything is starting to come back, business is booming and then you fall from heaven. Not from heaven to Earth but to hell,” Chang said.
After being served the lawsuit, Change paid $850 to have her restaurant inspected by a certified access specialist, or CASp. Site reviews from a CASp can certify establishments with “qualified defendant” status for construction-related accessibility lawsuits and can discourage serial litigators from filing against the business, Chang said.
During the inspection, Chang was informed she was mostly in compliance but needed a table with side legs instead of a center beam outdoors to provide wheelchair clearance. Though she had already built a ramp from the curb into her outdoor dining area, the CASp also recommended she build a platform for the ADA accessible table.
Chang said she takes full responsibility for failing to comply with the ADA and is willing to pay the base $4,000 fee required by the California Disabled Persons Act, the state’s version of the ADA. But Change said covering the requested damages in full and Johnson’s legal fees is too big of a demand for such a small infraction, particularly given how many local businesses he’s served.
“If the court wants me to pay the fine, I totally agree. A violation is a violation,” Chang said. “But why do I have to pay them?”
Serial litigator or advocate
Johnson is known for suing businesses up and down the state for violating the ADA but is not alone. The firm representing him also represents Gilbert Salinas who has sued multiple establishments in Half Moon Bay, and Orlando Garcia, who is largely responsible for suits in neighboring San Francisco.
Along Laurel Street alone, Johnson has filed suits against Ryu Sushi, New Canton Restaurant, Stamp Bar and Grill, Big Lou’s Liquor, Noelani’s Island Grill, The Crepe Stop, The Cask Wine Bar, Spasso and the Broiler Express.
“For this kind of serial filer, it’s disgusting. And during the pandemic they’re still doing the same thing,” Chang said.
Accounting for suits filed against businesses in Redwood City, San Mateo, Burlingame and other cities, roughly 40 Peninsula establishments have been served by Johnson since Jan. 1, according to court filings. He’s served nearly 600 businesses this year in total with more than 1,000 filed by the Potter Handy Law Firm.
Attorney Dennis Price, with Potter Handy Law Firm, refuted claims his client is out for financial gain. Calling Johnson an advocate, he said the ADA was designed for these types of litigation to occur to ensure businesses provide the proper accommodations for all community members.
“Mr. Johnson is the victim of discrimination and an advocate. When he sees a place that’s noncompliant he holds them to task for that,” Price said. “If we inventory the number of businesses we go to in a month it would number in the hundreds. Mr. Johnson deserves the same level of access as you and me.”
San Carlos Mayor Laura Parmer-Lohan, unaware of the lawsuits levied against businesses, also shared support for ensuring as much access as possible for those with disabilities.
“Higher order of concern is making sure our community is friendly for all abilities. My interest is making sure that everyone who lives here or works here can enjoy what we have to offer,” Parmer-Lohan said.
Rather than focus on the businesses served with lawsuits for breaking ADA requirements, Price said attention should be placed on defense attorneys who encourage their clients to pursue litigation instead of paying settlements. He claimed the defense attorneys are claiming large fees while aware they’re fighting losing cases.
Holding on hope
Still, many of the merchants feel they have a case against the lawsuits. George Fan, the manager of New Canton Restaurant, just across the street from My Breakfast House, said staff has not seen a single customer in a wheelchair visit the restaurants over the past year and a half when in-person dining was allowed.
Redwood City Mayor Diane Howard said businesses in town have suggested similar concerns, going as far as to review surveillance tapes to prove Johnson had never attempted to dine at their shops.
“I believe our restaurants are being unfairly targeted right now for financial gain. It’s quite disturbing,” she said.
Price said his client routinely takes photos of the barriers he faces but occasionally is unable to exit his car when adequate ADA parking is not available, leading to more lawsuits. Chang said she and her lawyer have yet to see the photos Johnson claims to have taken at her restaurant.
Amy Buckmaster, president and CEO of Chamber San Mateo County which represents business interests for San Carlos, Redwood City and the broader county, shared similar disapproval for the lawsuits.
Many of the businesses facing legal troubles have barely survived the pandemic, she noted. Howard said merchants have told her they’re still barely holding on and fear another financial hit.
The chamber is unable to engage in individual suits, Buckmaster said. Instead, merchants have been directed to private legal counsel.
“It is just a very unfortunate and sad situation that is taking place to our already struggling small businesses,” Buckmaster said.
Similar allegations in San Francisco have propelled an investigation by the city’s District Attorney’s Office into whether Chinatown merchants have been targeted with illegitimate ADA lawsuits, announced District Attorney Chesa Boudin on Wednesday.
The announcement has spurred hope among San Mateo County merchants and city leaders, now eager to see San Mateo County’s District Attorney Steve Wagstaffe also take action.
Wagstaffe said the office has only recently been informed of the lawsuits but is already in communication with the San Francisco office. While DAs are unable to get involved in private civil suits, they can intervene if their consumer fraud department feels the merchants are victims of predatory lawsuits.
Any action from his office on the matter is contingent on whether legal precedent set during a non-ADA related legal battle stands, providing immunity to any person to file a suit against another.
Deputy District Attorney Joel McComb recommended merchants seek private legal counsel to protect themselves and to file a Consumer and Environmental Complaint Form. Businesses may also file complaints with the State Bar of California if they believe an attorney is acting unethically, he said.
Ultimately, Chang said the issue is a city one as well. To protect businesses, she said she’d like to see the city conduct annual building code inspections that touch on ADA regulations, similar to inspections by fire departments and health and safety departments.
“The building department needs to do its job,” Chang said. “That protects the small business.”
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