Recently in Americans with Disabilities Act Category

Everyone has heard of the shakedown lawsuits some unscrupulous trial lawyers file against restaurants and other small businesses over alleged violations of the Americans With Disabilities Act.

Proving perhaps that karma exists and that there is yin and yang in the universe, a Colorado plaintiffs' attorney recently agreed to pay $50,000 to settle a federal complaint that he refused to allow a brain-damaged woman to bring her service dog to a deposition at his office.

It seems the lawyer, Patric LeHouillier of Colorado Springs, was afraid the dog would soil his recently acquired carpeting.

According to a Justice Department press release and the Associated Press, LeHouillier and his firm violated Title III of the ADA when they unlawfully barred a woman, her husband, and her attorney in 2006 from entering LeHouillier's law office for a deposition because the woman was accompanied by her service animal, an Australian Shepherd.

The woman, who is a veterinarian, has a traumatic brain injury and other conditions that affect mobility and balance, and trained the dog to help her with balance, vision, and hearing.

Without admitting guilt, under the terms of the consent decree, LeHouillier and his firm will:

• Adopt an ADA-compliant service animal policy and post the policy in a conspicuous location;
• Post a "Service Animals Welcome" sign;
• Self-report allegations of discrimination to the department;
• Undergo training and provide training to staff;
• Pay $30,000 to the complainant and $10,000 to her husband as a person associated with a person with a disability; and
• Pay a $10,000 civil penalty.

You can read the consent decree here.

With California mired in a financial crisis, some bloggers and opinion writers have compared California to other states, namely Texas.

And California is not coming out on top.

Trends Magazine pointed out the state was rated the worst to do business in, according to readers of Chief Executive magazine (which has rated California as the very worst state in which to do business for each of the past four years). Texas, which was listed the best place in which to place headquarters, boasts more Fortune 500 headquarters than any other state in the nation and an unemployment rate two percentage points below the national average.

And, as a piece in The Economist notes: "Texas also clearly offers a different model, based on small government. It has no state capital-gains or income tax, and a business-friendly and immigrant-tolerant attitude."

But also, Texas has focused on streamlining the regulatory and litigation burden on its residents, according to an article in NewGeography.com: "Texas has been aggressive in minimizing the enormous burden of frivolous lawsuits."

NewGeography.com writer Tory Gattis of Houston added a personal note to his post on the subject of frivolous lawsuits in California:

"I was just visiting my brother out in CA, and a friend of his with a small store was being hit with a large disability discrimination lawsuit for a minor oversight (handicapped parking was marked on the ground and had the requisite walkways and ramps, but lacked a pole sign). Evidently this has become a cottage industry in California, where lawyers guide the disabled through stores looking for very minor violations of a vague law (things like high shelves or tables), then sue (expecting a quick settlement, of course). Under CA law, discrimination guilt is assumed if there's anything in the store the disabled can't do that a normal customer can do, regardless of the availability of employees to provide assistance. His friend was clearly exasperated with the unwinnable situation. Just plain nuts."

We wrote recently on the CJAC Blog about a law passed last year aimed at increasing access while cutting down on extortionate lawsuits filed under the Americans with Disabilities Act. But Senate Bill 1608, which CJAC supported, has yet to impact the number of ADA lawsuits filed.

A law designed to reduce the number of abusive lawsuits under the federal Americans with Disabilities Act while also improving compliance with important access laws has yet to impact the number of ADA lawsuits filed, according to The Recorder legal newspaper's Cheryl Miller.

As Miller noted, attorneys on both sides of the issue say the number of lawsuits brought under state and federal disability access laws has not dropped.

However, one ADA defense specialist who helped draft the law, Senate Bill 1608, said it has cut the amount of damages plaintiffs are seeking, if not the number of claims they file.

"I have fewer clients coming to me saying, 'I'm going to go out of business, I'm going bankrupt, I'm going to have to dip into my home equity,'" said San Diego attorney David Warren Peters, the CEO and general counsel of Lawyers Against Lawsuit Abuse. Plaintiffs "can no longer make these very large demands. All things considered, that's a great improvement."

The law, which CJAC supported, created access specialists who can inspect businesses for access violations. Business owners can then display signs indicating their properties have been inspected, which allows them to ask a court for a 90-day stay of litigation if targeted for an access violation.

Also, statutory damages are now tied to the number of times a plaintiff was denied access, not to the number of violations found on the site.

One problem with SB 1608, Miller wrote, is that many ADA lawsuits are brought in federal court, where the reach of the law is unclear.

"It's a heyday [for plaintiffs] in this economy," said Catherine Corfee, a Carmichael attorney who defends businesses sued for access violations. "They know nobody can afford to challenge them."

Several business owners sued under the ADA have talked to CJAC about the lawsuit and its effect on their business. View their stories at www.cjac.org/problem.

The Ninth Circuit Court of Appeals has thrown out a suit by a plaintiff who assumed the role of a "spam sleuth" in order to capture massive volumes of e-mail marketing messages to fuel his "litigation enterprise" and then share the settlement proceeds with his "clients."

The spam scam went like this, according to Recorder newspaper reporter Pam Smith:

The plaintiff, James S. Gordon, Jr. created a personal e-mail address through GoDaddy, a domain registrar and web hosting company. He then set up additional e-mail accounts for a half dozen friends and family members, and subscribed himself and his "clients" to e-mailing lists for various online promotions and prize giveaways between 100 and 150 times.

Soon after, these accounts began receiving e-mails from businesses marketing their goods and services, according to the opinion in Gordon v. Virtumundo, Inc. In 2004, Gordon began filing lawsuits in state and federal court against the companies or individuals who sent the solicitations to the e-mail accounts. In this particular case, he sought injunctive relief, several million dollars in statutory and treble damages, and his attorney fees and costs.

The court ruled that Gordon did not have standing to bring a private action under the federal CAN-SPAM Act, noting: "Gordon has purposefully avoided taking even minimal efforts to avoid or block spam messages. Instead, Gordon devotes his resources to adding his 'clients' e-mail addresses to mailing lists and accumulating spam through a variety of means for the purpose of facilitating litigation."

"The CAN-SPAM Act was enacted to protect individuals and legitimate businesses -- not to support a litigation mill for entrepreneurs like Gordon," the court continued.

However, the court noted that it has granted standing to plaintiffs with similar schemes before. In a concurring opinion, Judge Ronald Gould wrote, "We accord standing to individuals who sue defendants that fail to provide access to the disabled in public accommodation as required by the Americans with Disabilities Act ('ADA'), even if we suspect that such plaintiffs are hunting for violations just to file lawsuits."

A hearing-impaired Ohio State football fan has sued the university, alleging it is violating the Americans with Disabilities Act by not providing captioning at all its venues, including Ohio Stadium, Schottenstein Center, and St. John Arena.

Ohio State spokesman Jim Lynch said the university is working with plaintiff Vincent Sabino's attorney and understands its legal obligations under the ADA, according to The Wall Street Journal Law Blog.

"We're hopeful we can reach an acceptable resolution for both parties that will cause the lawsuit to be dismissed," he said. "We are considering a host of options including captioning on the scoreboards."

Sabino wants captioning for everything from referee calls to song lyrics. He also seeks an unspecified amount of compensatory damages.

In California, legislators last year passed and Governor Schwarzenegger signed Senate Bill 1608. The bill, which became law January 1, aims to improve disability access to public locations while also reducing predatory lawsuits by lawyers taking advantage of complex access rules.

As new lawsuits filed under the Americans with Disabilities Act continue to crop up against California businesses, one case against Pier 1 Imports, Inc., could give hope to some business owners.

The 9th U.S. Circuit Court of Appeals in San Francisco ruled in favor of the retailer, finding that plaintiff Byron Chapman does not have standing to pursue claims for alleged barriers that he had not personally encountered and where he was not deterred from entering the store. The opinion can be read here.

Chapman visited the Pier 1 store in Vacaville, in Northern California, in 2004 and alleged that he encountered five alleged accessibility barriers to his use of the men's restroom. "Further," the opinion reads, "despite encountering these barriers, Chapman testified that he was not deterred from visiting the store or using the restroom, that he intended to return to the store in the future, and that he may already have done so."

Chapman had attached to his complaint a "survey of access code violations" which listed 23 alleged barriers: the encountered alleged barriers, plus 18 additional barriers that he did not encounter. A new report 10 months later identified 30 alleged accessibility violations, repeating three of the alleged violations found in the earlier survey and asserting 27 new alleged violations.

The district court granted Pier 1's motion for summary judgment on the five accessibility barriers.

The Ninth Circuit then concluded that Chapman did not have standing to pursue claims for un-encountered barriers.

"This case is good news for retailers and other businesses who have far too often been targeted by opportunistic and vexatious litigants," lead appellate lawyer Laura Franze of Hunton & Williams LLP, said in a news release on the firm's web site.

Sacramento burger joint Squeeze Inn received national attention after it was featured on the Food Network's popular "Diners, Drive-ins and Dives" program.

It also attracted plaintiffs' attorney Jason K. Singleton, who has filed lawsuits under the Americans with Disabilities Act against numerous businesses in Northern California -- including one that forced Eureka's Arctic Circle restaurant to close last year because, the owners said, they could not afford the renovations required by the lawsuit.

Squeeze Inn owner Travis Hausauer said he doesn't have the time or the money to make the changes, and that the lawsuit could shut him down.

Plaintiffs' lawyer Singleton sued on behalf of Kimberly Block, who cites a lack of accessible tables, no grab bars in the restroom, and uneven gravel surfaces outside.

Another business owner sued by Singleton, Six Rivers Brewery co-owner Meredith Maier, talked to CJAC earlier this year about the changes she made to bring her business into compliance with the ADA, and the financial hardships the business faced. The video can be viewed here.

Last year, the California Legislature passed a bill designed to improve access and reduce abusive lawsuits regarding the Americans with Disabilities Act. The bill, SB 1608, which CJAC supported, will hopefully reduce the number of abusive ADA lawsuits but will also improve compliance with important access laws.

The U.S. 9th Circuit Court of Appeals has ruled that federal regulations requiring municipalities to develop a transition plan to bring their curbs and sidewalks into compliance with the Americans with Disabilities Act is not enforceable through an implied private right of action.

In 1997, John Lonberg, a paraplegic, sued the city of Riverside, alleging violations of the Americans with Disabilities Act.

U.S. District Judge Stephen G. Larson ordered Riverside to come up with a transition plan that met ADA standards. Riverside appealed, saying in effect that Lonberg, as a private party, could not judicially enforce this provision of the ADA. (See this article in the Riverside Press-Enterprise.)

A 2001 U.S. Supreme Court ruling determined that only Congress can create a private right of action, the appellate judges said, and must do so expressly not through judicial implication.

They concluded that the section of the ADA that Lonberg cited in getting Larson's order did not address whether a public entity was obligated to create a plan and that its failure to do so created a private right for such a plan.

The court's ruling agreed with arguments in an amicus brief submitted two years ago in support of the city's position by the Civil Justice Association of California, the California State Association of Counties, and the League of California Cities. Lonberg v. City of Riverside.pdf

Fred J. Hiestand, CJAC General Counsel, argued to the 9th Circuit that:

"Denial of a private right of action in this case does not deprive disabled persons of their right to prosecute municipalities for failing to remove architectural barriers to the accessibility of public facilities. To the contrary, it simply leaves cities free to prepare or not prepare transition plans in response to federal administrative requirements, knowing that local governments can be held directly accountable to disabled persons for conduct that occasions them real harm under the protective provisions of the ADA. But there is no indication that Congress felt a local government's failure to develop a transition plan in and of itself seriously harms disabled individuals and should be enforceable through a private right of action."

Lonberg v. City of Riverside Opinion.pdf

The California Supreme Court ruled unanimously on Thursday that business which violate the federal Americans with Disabilities Act, even if unintentionally, can be sued for damages.

As Mike McKee reported in The Recorder legal newspaper, Justice Kathryn Mickle Werdegar concluded that the court's decision was a reasonable interpretation of the state Legislature's decision in 1992 to amend the state's Unruh Civil Rights Act to include ADA violations.

She wrote: "A plaintiff who establishes a violation of the ADA, therefore, need not prove intentional discrimination in order to obtain damages under (Civil Code) section 52."

While the ADA provides only injunctive relief whether the harm was intentional or not, Section 52 of the Unruh Act provides for damages of at least $4,000 -- or as much as three times the actual harm.

The case, Munson v. Del Taco, Inc., involved a disabled man who sued Del Taco after complaining that its restaurant near San Bernardino didn't provide disabled parking or handicapped-accessible public toilets. Del Taco later spent $75,000 on renovations, McKee reported.

The Supreme Court in its decision also noted that the state Legislature "was informed -- and may be presumed to have been aware -- that damages under the Unruh Civil Rights Act might be awarded for denial of ADA mandated access without proof of intentional discrimination."

But the Legislature, in approving Senate Bill 1608 during the last legislative session, chose not to include requiring such notice or other proof of intent to discriminate. The bill, which became law January 1, will improve disability access to public locations and reduce predatory lawsuits by lawyers taking advantage of complex access rules.

The court wrote: "Even if we agreed with defendant that adding an intent requirement to the Unruh Civil Rights Act would be warranted to curb abuse, we would not be free to substitute our own judgment for that of the Legislature."

A southern California business owner involved in a costly lawsuit said he would have fixed the problem right away -- had the plaintiffs let him know about it immediately.

Restaurant owner Ron Piazza said employees had replaced a mirror which had been destroyed by vandals. The new mirror, two inches shorter than the previous one, was hanging too high to satisfy disability access regulations, Piazza explains in a video on www.FacesofLawsuitAbuse.org. Once he was notified of the mistake, he lowered the mirror.

But it was too late. His business was sued under the Americans with Disabilities Act. The plaintiffs allege that the height of the mirror inflicted damages each time they visited -- for a total of 27 incidents in a three-month period.

"The multiple visits allow the plaintiffs and their lawyer to sue for damages per visit. ... Had I not lowered the mirror, they probably would have continued to come and log more visits," Piazza said.

Piazza said he will keep his restaurant open, even though the lawsuit has cost more than the business made last year.

Piazza's story is one of many highlighted in a campaign by the U.S. Chamber Institute for Legal Reform, which shows how frivolous lawsuits are harming small businesses. View his story here. More stories can also be seen on the CJAC web site.

Plaintiffs' lawyer Thomas Frankovich, who has filed hundreds of lawsuits against businesses on behalf of a small stable of clients, could be in for a judicial rebuke this summer that would make him the first California attorney disciplined over the filing of lawsuits under the Americans with Disabilities Act.

The California State Bar last year charged the cowboy boot-wearing litigator from Marin County with filing frivolous claims based on contrived injuries and using extortion to get quick cash settlements out of businesses, the Daily Journal's Amy Yarbrough reported (subscription only).

According to the State Bar complaint, Frankovich would typically wait up to a year before filing a complaint in order to maximize the damages, requesting $4,000 per day from his client's visit until the problems were corrected. Along with the complaint, he'd send a letter to the business that was "misleading and intimidating" in hopes of getting it to quickly settle, according to the State Bar.

"He actually advised people, 'Don't bother getting a lawyer,'" Scott Drexel, the State Bar's chief trial counsel, told the legal newspaper.

If Frankovich is found guilty of misconduct, it might discourage serial plaintiffs, prompt attorneys to more carefully investigate claims and follow up to make sure ADA violations are fixed, and end other abuses of disability access laws, said Martin Orlick, a San Francisco real estate litigator who has represented businesses sued by Frankovich's clients.

Frankovich is no stranger to judicial rebukes. In December 2004, the late U.S. District Court Judge Edward Rafeedie of Los Angeles declared one of Frankovich's most active clients, Jarek Molski, a vexatious litigant, because of a suit Molski filed against a Chinese restaurant in the central California tourist town of Solvang. The court ordered both Frankovich and his client to win permission from a judge before filing any more ADA lawsuits in the Central District and sanctioned the attorney. (Read our earlier blog posts here and
here.)

That was the message from Crystal Chodes, a former employee of a youth sports facility near Sacramento, Calif., and one of several people who testified this week on abusive lawsuits at a hearing on legal reform sponsored by the U.S. Senate Republican Conference.

Chodes worked for Basketball Town, a family-friendly facility forced out of business by the legal costs associated with an Americans with Disabilities Act lawsuit. Basketball Town's dozen employees lost their jobs, and thousands of children in the community lost a safe place to hang out after school and on weekends.

"Since Basketball Town's closure, I have looked for ways to speak out against the devastating effect that abusive lawsuits have on families, kids, and small businesses -- the backbone of every community in our country," Chodes said at the hearing. "And in doing so I have met many other small businesses who have been similarly impacted by abusive lawsuits."

Listen to Chodes talk more about Basketball Town here.

Other panelists included Philip Howard, author of "The Death of Common Sense," and Ted Frank of the American Enterprise Institute, according to an editorial in The Examiner.

There he was, California's notorious serial ADA lawsuit attorney Morse Mehrban, sitting in a corporate conference room with attorneys of the parent company of a restaurant chain he was suing for access-violating restrooms, when he excused himself for a bathroom break.

Two weeks later the lawyers got a summons.

"We couldn't believe it, he was suing us for the height of the mirror, in the bathroom in our own office, during depositions," Matthew H. Schwartz, who was then corporate counsel for the parent companies of Pollo Campero, Curacao and ADIR Restaurants, told the Daily Journal legal newspaper (subscription required).

The restaurant put up $1,000 for a settlement, but took Mehrban to court when he asked for $8,000 in attorney's fees. Los Angeles County Superior Court Judge Richard Rico rejected the fee, saying, "In light of all the circumstances I'm going to exercise my discretion to deny attorney's fees -- unless you can convince me otherwise."

Mehrban accepted the decision without protest. And he eventually dropped his complaint over the corporate restroom.

Mehrban, who graduated from Southwestern University School of Law and was admitted to the state bar in 1993, has with one plaintiff filed more than 100 lawsuits against Southern California businesses under the Americans with Disabilities Act.

Mehrban is also mentioned in this Los Angeles Times story, which was noted on the CJAC Blog earlier this year.

Though serial litigant Jarek Molski was barred by a federal judge from future litigation in the seven-county Central District of California, businesses are not necessarily safe from shakedown lawsuits. Plenty of other plaintiffs are following his lead, filing hundreds of lawsuits against businesses under the Americans with Disabilities Act.

Thomas Mundy is one of these. He told the Los Angeles Times that he filed more than 150 lawsuits in 18 months demanding damages from small businesses.

But Mundy isn't the only attorney making his living from ADA suits. Lynn Hubbard III of Chico estimates he has filed 1,500 suits over the past decade, settling out of court 95% of the time. The Irvine law firm of Azimy-Nathan has filed at least 400 suits on behalf of six disabled clients over the past five years.

According to the Times, "Suing for ADA noncompliance has become a cottage industry for dozens of disabled Californians who have taken on the role of freelance enforcers of an often ignored federal statute. They secure piecemeal correction of offending premises and often enrich themselves and their lawyers in the process."

"He (Mundy) might as well have had a gun and asked me for $1,000 when he came in," Paul Venetos, owner of Anaheim's Varsity Burgers, said of an April visit that led to a lawsuit over a condiments counter that was half an inch too high.

The Sacramento Bee also has a story on the ADA. It mentions Senate Bill 1608, which became law Thursday, and will improve disability access to public locations and reduce predatory lawsuits by lawyers taking advantage of complex access rules.

A California litigant who has sued hundreds of businesses statewide for alleged violations of the Americans with Disabilities Act lost his appeal last week before the United States Supreme Court. Jarek Molski was trying to overcome a court order requiring special permission to file new lawsuits.

Molski, who has filed more than 400 ADA lawsuits, was labeled a "vexatious litigant" by California federal courts. The appeals court said the "district court had ample basis to conclude that Molski trumped up his claims of injury." Molski, who uses a wheelchair, has been chastised by judges for over-reaching before. In one case, the judge found:

"The ADA is intended to achieve the prompt remediation of architectural and other barriers that impede access to places of public accommodation by the disabled community. By tacking on state law claims for Unruh damages to his federal ADA complaints, Molski reveals his true motive: to extort a cash settlement. Rather than further the prompt remedial purposes of the ADA, these Unruh state law claims for money damages lengthen the time it takes to settle disputes, add additional issues to a case, and increase the litigation costs of both parties to a dispute. As a result, access --Molski's alleged purpose in bringing these claims -- is greatly delayed and rarely achieved."
Molski v. Kahn Winery, 2005 WL 3436792 (C.D. Cal., Dec. 15, 2005).

Last year, the California Legislature passed a bill designed to improve access and reduce abusive lawsuits regarding the Americans with Disabilities Act. The bill, SB 1608, which CJAC supported, will hopefully reduce the number of abusive ADA lawsuits but will also improve compliance with important access laws.

Read the article here.

A Casmalia, Calif. restaurant doesn't want anyone to forget about their costly brush with a lawsuit brought by a plaintiff who was once named a "vexatious litigant" by a federal judge.

The Hitching Post was sued in March 2004 for alleged violations of the federal Americans with Disabilities Act. The plaintiff, Jarek Molski, is well-known for the hundreds of lawsuits he has filed against California businesses.

Some of those lawsuits were against Central Coast businesses -- by the end of 2005, Molski had sued about 95 businesses between Santa Ynez and Paso Robles, Calif., according to the Santa Maria Sun. He settled with more than 60 businesses for an estimated total of $1.2 million. According to one lawsuit, by October 2004, Jarek Molski had filed 374 similar ADA lawsuits.

The lawsuit against The Hitching Post was dismissed in federal court in 2005 after Molski stipulated the restaurant had made acceptable repairs, such as lowering the counter, according to the restaurant's web site. Molski then filed a lawsuit against the restaurant in Santa Barbara County, which a judge declined to hear.

The restaurant's owners spent $60,765.97 fighting the federal lawsuit. On their web site, they explain: "We are not opposed to businesses making their establishments accessible to the disabled, our own mother has been confined to a wheelchair for many years. We are opposed to people and their lawyers using the ADA laws to make a living off of hard working families providing jobs to fellow Californians."

In December 2004, federal judge Edward Rafeedie ruled that Molski, who was paralyzed from the chest down after a motorcycle accident when he was 18 years old, is a "vexatious litigant" who runs a "scheme of systematic extortion" by filing mass disabled-rights complaints. However, in 2007 the Ninth Circuit in Molski v. M.J. Cable, Inc. acknowledged Molski's notorious history as a vexatious litigant, but effectively held that the ADA permits such strategies.

Overlawyered has more information about Molski and his attorney.