ADA Shakedowns

by Jonah

Hussein Kajouee, 63-year-old Iranian immigrant, bought the Hyde Out, a neighborhood bar in San Francisco, 17 years ago. He found out the hard way what can happen to the average American when the long arm of the Americans with Disabilities Act grabs you around the throat.

The man who sued him, quadriplegic Marshall Loskot, visited the bar only once — in February 2004. He was there barely long enough to go to the restroom, which he quickly deemed too cramped for his wheelchair and unable to pass ADA muster.

Two years and $34,000 later, Kajouee settled, deciding against chancing that a jury would accept his argument that replacing the restroom in a century-old building wasn’t “readily achievable” (in other words, that it would cost too much), an exception to ADA compliance for older structures carved out under the law.

Had he lost at trial, besides a judgment, he would have also faced paying Loskot’s legal fees as well as his own…

As it turns out, that February day was a big one for Loskot… A review of court records shows Loskot claimed to have had not one, but two lunches — one at the Washington Square Bar & Grill in North Beach; the other at the Golden Horse Restaurant, a Chinese place next door to the Hyde Out.

He sued both.

For dinner, he went to La Barca in Cow Hollow, a restaurant he had sued several months earlier during another trip to the city. Afterward, he retired to a hotel in Petaluma, which he also ended up suing…

Indeed, records show that Loskot has been the plaintiff in at least 92 such lawsuits since 2000, averaging one a month during the last 7 1/2 years. (As for the two lunches on the same day, he says simply, “I’m someone who likes to eat.”)…

“There’s a special place in hell reserved for that man,” proclaims Larry Juanarena, 75, the former owner of Pat and Larry’s, a mom-and-pop steakhouse in Willows, Calif., that he and his wife, Pat, operated for a quarter-century before selling last year. Loskot sued the restaurant in 2005, ironically only a few weeks after Juanarena completed a remodel intended to make the eatery accessible to the disabled. Having settled for $11,000, he considers himself luckier than most, but still bristles at the memory.

“What Loskot and others like him do is nothing less than legalized extortion,” Juanarena says.

California businesses typically settle out of court for $20,000 to $35,000, much less than they’d pay upon losing a jury trial and being stuck with both their and the plaintiff’s legal expenses.

In 2000 Clint Eastwood fought a plaintiff who wanted more than half a million dollars in attorney’s fees after accusing his historic 1850 inn in Carmel of ADA violations. He claims when he bought the hotel he did everything he could to comply. A jury found Eastwood responsible for two minor infractions but didn’t order him to pay anything. Who knows how much his legal fees were, since his pockets are much deeper than the usual victim of these lawsuits.

River City Brewing, a Sacramento bar, decided to fight but was forced to declare bankruptcy when a court ordered it to cough up $145,000 in plaintiff’s legal fees. Why? Because they had some seating (less than a third) in a mezzanine area not wheelchair accessible, an architectural plan the city had approved.

George Louie has filed over 500 lawsuits against businesses all over California for ADA non-compliance. He even sued one of his own lawyers Paul Rein (the attorney who sued Clint Eastwood) for having his office toilet two inches too close to the wall and its grab bars not positioned right.

Another serial suer is Jerek Molski, who has filed more than 500 ADA suits in California the last four years. He doesn’t have a full time job and typically gets $4,000 for each business that settles. His attorney Tom Frankovich gets the rest and is estimated to have made around $10 million from representing Molski alone. (His office is oddly inaccessible to anyone in a wheelchair, several steps above the street with no elevator. He meets with handicapped clients off-site.)

The Shadowbrook Restaurant in Capitola, CA spent around $200,000 on renovations to become more handicapped accessible, even installing a wheelchair lift from the entry level to the main level. But before work was completed, it was hit with a ADA non-compliance lawsuit. One of the cited problems was the “hillevator” that carried customers down to the entrance, despite the fact that it was installed in 1989, before the 1993 ADA cutoff date, and a building inspector had tested it for wheelchair clearance. Apparently, no good turn goes unpunished.

In California, a single plaintiff — in one day — doled out lawsuits to 20 businesses along a stretch of highway, charging them with noncompliance with the ADA. Many ADA infractions are minor, such as Braille signs that are one inch too high, doors that are a half-inch too narrow, handicapped parking signs that need to be repainted, and the lack of signs directing people to handicapped-accessible entrances.

Part of the problem is California law, which sometimes contradicts Federal law and always makes it easier and more lucrative to sue. But these drive-by suings aren’t limited to the Golden State. Florida has been experiencing a rash of these lawsuits, one of which even targeted a wheelchair store with two handicapped owners. In the space of a few months in 2004, Warren Lloyd had sued more than 30 establishments in the Philadelphia area for causing dire emotional distress due to ADA non-compliance. Many of the restaurants were flabbergasted; no one had ever complained about their facilities before they’d suddenly received letters saying they were being sued and urging them to settle for a few thousand bucks.

So why don’t establishments just follow the law to begin with? The ADA lays out hundreds of requirements: height of countertops and mirrors, weight of swinging entrance doors, the exact location of grab bars, as well as 95 different standards for bathrooms alone. Hardly any establishment can expect to be 100% compliant, even after hiring an ADA adviser. The law also gives winning plaintiffs the right to collect generous attorneys’ fees, while a winning defendant still has to pay for his defense.

L&L Drive-Inns, a restaurant chain in Hawaii, was sued for non-compliance in 1997 for one of its units for infractions like the omission of Braille signs on restrooms and noncompliant seating. L&L settled the case and then fixed problems at all their restaurants, hiring an ADA expert to review them. But a few months later they were sued again. This time they went to court. In the end they were instructed to place a sign on an outside door that led to an employee only restroom directing people to the restaurant’s handicapped-accessible entranceway, something the expert had never expected.

Instead of being an instrument to help people, too often the ADA is being used to get a quick buck for a few savvy folks in wheelchairs and their lawyers. In 2000 Representatives Mark Foley (R-FL) and Clay Shaw (R-FL) introduced legislation to require ADA complainants to give firms notice of non-compliance and 90 days to fix them before slapping them with lawsuits. But strong opposition from disable-rights group and the Clinton administration stopped the bill in its tracks.

But at least it appears even New York City isn’t immune.

In 2001, a disabled-rights advocacy group sued the Duane Reade drugstore chain, charging that many of its outlets in Manhattan violated the ADA. One plaintiff complained that some non-prescription medicines stood on shelves too high for her to reach; another felt uncomfortable when store employees had to help her get to the pharmacy area. Mandates for uncrowded drugstores will probably lead to the closing of some locations in places like midtown Manhattan—thus making everyone, handicapped people included, go farther to get their prescriptions filled or pay higher prices, since rent per square foot is a major element of overhead.

Citations:

ADA Lawsuit Factory in SF, Wed Jul 25, 2007
The ADA After a Decade: The Industry’s Efforts to Provide Accessible Hospitality, September 2000
The ADA Shakedown Racket, Winter 2004

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