Compliance Gone wild
Frivolous ADA lawsuits pose a serious threat to local businesses
By Michael Sullivan 04/05/2012
Meet Alexander James Johnson, 49, and his dog, Snoopy. Johnson, a Massachusetts native and current resident of North Hollywood, was diagnosed with severe bilateral sensorineural hearing loss and Snoopy assists him as his service dog.
Several months ago, Johnson paid a visit to the Inn at the Beach in Ventura. It is unclear whether the incident happened before or after paying for a room but, at some point, Johnson asked the front desk clerk if there was a TTY(teletypewriter)/TDD (telecommunications device for the deaf ) device available. The clerk said he didn’t know what that was. Johnson retorted that it was device for the hearing impaired. To that, the front desk clerk responded with a clear “No.”
Around a month later, Ron Thomas, the owner of the inn, was served with a lawsuit for not being compliant with the Americans with Disabilities Act (ADA) because his business didn’t have the hearing device. Though the front desk clerk had since argued that Johnson never asked for the device, Johnson’s attorney, Morse Mehrban of Los Angeles, has concrete evidence: a video of the actual incident recorded by Johnson. The monetary damages for being ADA noncompliant: $4,000 plus attorney’s fees, as is written in the California Civil Code, section 52, in correlation with the federal ADA.
This came as a shock to Thomas. For the last 26 years, Thomas has been in the hotel industry and he has never once had a request for a TTY/TDD device before this. He also said that it was the first time he had ever been sued for being ADA noncompliant, though he may have spoken too soon. A few weeks after being served with the lawsuit due to the lack of the hearing device, he was served with another lawsuit for not being ADA compliant because, apparently, there were barriers to access in relation to the handicapped parking spot, a situation Thomas still remains confused about. He said he thinks it may have to do with the space necessary for wheelchair access and the painted parking space lines for the handicapped. This time the plaintiff asked for $10,000, though recently reduced it to $4,000. The woman, also with the last name of Johnson though she does not appear to be related to Alexander, apparently didn’t enter the hotel and didn’t rent a room. Thomas said he feels that the lawsuits are a clear case of extortion.
“It costs more to fight than to pay them off,” he said. “I’m totally being extorted.”
The tip of the iceberg
In a survey of seven random hotels in Ventura County, two hotel clerks said they had it, three didn’t know what a TTY/TDD device was, one said two devices had been ordered but the manufacturer was backlogged, another hotel clerk said she didn’t know, until another clerk stepped in and responded that the hotel did have one. For more than half of these hotels, if Johnson or any hearing-impaired individual had visited them and requested a TTY/TDD device, the law requires that, if a lawsuit were to be filed, the proprietors must pay $4,000 in damages for not being compliant. The device costs around $500 and an attorney costs around $8,000 to fight such a lawsuit. In the end, it’s more cost effective to buy the machine in the first place, but also to pay the $4,000 if served with a lawsuit. Some businesses have fought back and won, only to end up with tens of thousands of dollars worth of attorneys’ fees.
This isn’t anything new for Johnson, however. He is what is called a serial plaintiff. In Los Angeles, he, with his attorney, Mehrban, has sued more than 250 public and private entities over the last couple of years, though that number may be much higher, according to attorneys who have dealt with Johnson outside of Los Angeles. But Johnson apparently isn’t focusing on hotels in L.A. for not having hearing devices as he recently did here, but rather is suing over equal access with his service dog. (Attorneys defending businesses sued by Johnson are questioning not only how dogs help the hearing-impaired and the degree of Johnson’s impairment, but they as well as may people in general are also questioning the validity of “service” dogs in general. Because anyone can buy a service dog manual and vest, as long as an owner agrees to the conditions of the organization providing the certification, any dog can be certified as a service dog for, it seems, almost any reason.)
Snoopy is Alexander James Johnson’s service dog. Snoopy assists with Johnson’s hearing impairment, however, some are concerned about how service dogs are being certified and for what purposes.
In Johnson’s quest for equal access, he has uploaded a string of videos online on YouTube under ALEX2008LA. He and/or his dog, Snoopy are seen flying on airplanes and trying to board public buses where, in one instance, he was denied access because the driver said the dog’s tag wasn’t a certified service dog tag. (The tag in question appears to be a harness with a small dog tag unlike the regular vests seen on most service dogs.) Another lawsuit against the city of Los Angeles was surely filed. But Johnson has volumes of videos where he has been denied access with his dog — evidence that Mehrban has sent to attorneys trying to defend businesses against lawsuits over ADA noncompliance. For each place Johnson has been denied entry, a lawsuit has apparently been filed. That’s where Abraham Mathew comes in.
Mathew, of the Los Angeles-based firm, the Law Offices of Mathew and George, felt compelled to defend nine 7-11 franchise owners in L.A. who have been sued by Johnson and Mehrban. Though they are on a shoestring budget for the defense, Mathew decided to take on the case because he said he felt the law was being abused.
“[There is a] fundamental unfairness of this law and how it is written,” Mathew said.
Upon review, Mathew found that most of Johnson’s cases had been dismissed because, apparently, the businesses decided to settle — again, it is more cost-effective to settle than to fight. If the business settles for $4,000 each, Johnson and Mehrban stand to make a combined total of around $1 million for the service dog cases in L.A. and, because it’s damages won from lawsuits, it’s tax-free. Furthermore, Johnson, because he apparently qualifies as low-income, can file his court complaints for half the court costs via a subsidy. All other businesses and people have to pay the full amount. Also, the sheer number of lawsuits puts a heavy burden on the courts and shifts those costs back onto taxpayers.
Despite Johnson’s apparent success with settlements, Mathew has decided to contest the content of the videos in the 7-11 cases. He said that in a number of them, it is unclear what is being said and who is talking. Because Johnson is using a smartphone video recorder or something similar, the audio apparently isn’t very clear. He also said that many of his clients didn’t have an issue with his service dog. But this was just the beginning of Mathew’s experience with Johnson.
Shortly after he took on the case with the 7-11 owners, Mathew was contacted by the Blue Man Group and a few online entities because of Mathew’s affiliation with Johnson. Johnson filed a lawsuit claiming he was unable to access a way to purchase tickets online because the website didn’t cater to the hearing impaired. Johnson claimed it happened 69 times, but Mathew is still trying to figure out what, exactly, was denied Johnson and if Johnson is asking for $4,000 for the 69 occurrences or more than $250,000 for 69 violations. Mathew said it seemed that the case had more to do with equal access to the venue featuring Blue Man Group than with the group and its website and any other websites featuring Blue Man Group. Mathew also said he didn’t know what prevented Johnson from purchasing tickets and going to the show. Regardless of the outcome, Johnson is apparently expanding his complaints regarding his hearing loss and ADA noncompliance. Mathew said that after he took on the cases with the 7-11 franchise owners and Blue Man Group, he started to receive calls from Ventura County businesses regarding similar issues.
An ongoing problem
To say that Johnson is the only serial plaintiff for ADA noncompliance (some have called such plaintiffs “crusaders for the disabled”) would be inaccurate. In fact, Mehrban has made a lucrative career off of numerous disabled clients who have, combined, filed thousands of lawsuits against businesses ranging from small mom-and-pop shops to giant retailers and government agencies. And this has gone on for years. But Mehrban isn’t the only attorney who has pursued such a lucrative endeavor. Ken Mitchell, vice president of operations for Sacramento-based ADA Compliance Consultants, said he hears about these situations on a daily basis. Mitchell is a certified access specialist and has been working with ADA compliance issues since 2004.
“They have found a loophole — legal extortion,” Mitchell said.
According to Mitchell, being in full compliance may be a difficult task because, in total, there are thousands of city, state and federal codes, and the public agencies that inspect for ADA code compliance may not be fully aware of every code on every level. Though there are ADA-compliant architects, he said that due to the sheer number of codes, not every architect is going to know every code. And for serial plaintiffs like Johnson, and attorneys like Mehrban who represent them, there is big money to be made with ADA noncompliance. And it is all perfectly legal.
Under California’s Unruh Act, according to legislativedisgrace.com, between 25,000 and 35,000 lawsuits have been filed — most of them being filed in recent years — and of all the ADA noncompliance lawsuits filed in the States, 40 percent of them have been filed in California. It has been a worthwhile business, attracting attorneys from across the country, focusing on ADA-noncompliant businesses and working with disabled clients. In a tally done in 2005, a handful of serial plaintiffs had demanded more than $1 billion for ADA noncompliance issues, according to adacrisis.com.
David Peters, CEO and general counsel for San Diego-based Lawyers Against Lawsuit Abuse, has defended clients whom Johnson has sued and others who have been sued for ADA noncompliance. Peters has worked with legislators in trying to find a solution to frivolous ADA noncompliance lawsuits, but also advocates that there must be a better way for businesses to fully comply with the law. But lawmakers are falling short.
“The California Commission on Disabled Access (CCDA) was required by Government Code, section 8299.06, to produce a master checklist by July 1, 2010, which could help businesses avoid these claims but still has not done so,” Peters wrote in an e-mail. “In fact, not even a draft has been circulated. While the CCDA may take the position that the checklist would be used primarily by building officials, the fact is that many associations would adapt and simplify it for their members. As a defense attorney, I’d use it to help fend off the new and innovative claims, which seem to emerge each week. Comments from some higher-ups at the CCDA suggest that the conclusion’s been reached that such a checklist can’t be produced. If so, how is it fair for small struggling businesses to continue to be subject to these claims if the state of California can’t even prepare a definitive checklist of the steps to avoid them?”
Mitchell, however, said that he, among other certified access specialists, can help businesses become ADA-compliant. His job is to make a report of a business’s failures to be in compliance. The report costs, on average, between $1,100 and $1,600. The next step is for the businesses to hire a contractor in order to become fully ADA-compliant, which could cost hundreds of dollars or tens of thousands of dollars or possibly more. For many businesses, it’s not feasible, but it’s the law. In Peters’ experience, he said, reports coming from different certified access specialists can vary. What one specialist notes, another may not, and vice versa.
David Geffen, a Santa Monica-based attorney who specializes in ADA law, employment law and personal injury, said it is time for businesses to become ADA-compliant — it’s been 20 years since the law was enacted on the federal level.
“It’s undeniable that these plaintiffs have made a lot of money,” Geffen said. “But they have also forced a lot of change for the public good, not just at the businesses they sue. Their lawsuits have scared a lot of other businesses into making their own businesses accessible.”
Geffen, who is wheelchair-bound, knows firsthand what it is like to be denied access because a business isn’t ADA-compliant. But he said he also knows that some serial litigants aren’t out to change things, but out for the sole purpose of making money.
“One thing that irks me are plaintiffs who bring claims just for the money and don’t bother to follow up,” he said. “There are sometimes people looking for ADA cases; other people will not tolerate ADA [noncompliance]. You can’t really know; sometimes it’s even a crossover.”
Geffen did not comment on any lawsuits he has filed as a result of his own personal experiences, but noted that he sees hundreds of violations everywhere he goes.
More to come
Businesses that may have been compliant with codes when the ADA was first enacted may be in for a surprise. In 2010, various codes were updated and others were clearly defined and, as of March 15, all businesses had to comply with the updates. Unfortunately, many businesses aren’t aware of the updates. Mitchell has two major concerns with these latest updates — the first has to do with the necessity for pool lifts, and secondly, any business that caters to the public and has a website must have a link on the website indicating the codes they are ADA-compliant with and codes with which they aren’t.
First, the pool lift. Mitchell, who has been working with numerous hotels to come into compliance, said one of the updated codes requires all hotels to have pool lifts for each and every body of water that guests use. If a hotel has three pools — say, a swimming pool, a wading pool and a Jacuzzi — the law specifies that the hotel must have one for each. (Peters said this law had been on the books for a long time, but certain aspects of it have recently changed.) A pool lift ranges between $4,000 and $7,000, and the cost to install may cost thousands more. All hotels had to be compliant with this law by March 15, but the American Hotel and Lodging Association requested that the Department of Justice give hotels 60 to 90 days’ reprieve to get into compliance. The request was granted. Last week, Congressman Mick Mulvaney, R-S.C., introduced legislation to amend the pool lift requirement by delaying the date of compliance by one year, allowing the use of portable lifts, allowing sharing of lifts between pools, and protecting for hoteliers from being sued during the delay period. The bill is working its way through Congress.
The second big concern for businesses, said Mitchell, is the required list on websites. He said that not only do businesses have to create and publish this ADA compliance list, but for any codes the businesses are not compliant with, disabled people who are affected can sue for not being compliant.
“It’s literally uncharted territory,” Mitchell said. “We don’t have any case law — this is all brand-new.”
Regarding the recent updates, Peters expressed his surprise at the addition of service miniature ponies to the category of service dogs. Monkeys can also be certified as service animals.
Leo Orange, coordinator of the Oxnard College Educational Assistance Center, has been confined to a wheelchair for 24 years. Over the last couple of decades, he has come across thousands of ADA compliance violations. Of those thousands, he has only threatened to sue twice. In one instance, he went after a Hungry Hunter in Thousand Oaks for not having a wheelchair-accessible bathroom. It’s one thing to fall short of complying with various ADA codes, another to be in a humiliating situation without equal access. Orange expressed his intentions to sue Hungry Hunter, but ended up working with the corporation, and eventually a unisex wheelchair-accessible bathroom was built. Since then, Hungry Hunter has gone out of business. In the second instance, Orange filed a complaint against AEG Staples Center regarding compliance issues on their ticketing for disabled seating. He has since developed a collaborative relationship with AEG on other projects on compliance issues, such as L.A. Live and Nokia Center. But Orange has chosen to follow a different path than serial litigants.
“I really feel for people with disabilities when they advocate in good faith,” Orange said. “When you look at it from a legal basis for filing a lawsuit, have they gone in and warned or educated a place about what is legal and what is equal access to goods and services on an individual basis? It depends on what their goals and objectives are.”
He doesn’t believe in crusaders for the disabled, those who file hundreds of lawsuits. He said that noncompliance issues happen everywhere he goes.
“I experience that. It’s part of life,” Orange said.
But he also said that businesses shouldn’t be preyed upon. He recalled a news article in the last year where a judge allowed a defendant of an ADA noncompliance case to counter sue. In that particular situation, the business won. Peters, however, said businesses should proceed with caution in countersuits because, if the original defendant (a business that was not ADA compliant) is found guilty and the counter suit is dismissed, the business/plaintiff of the counter suit is liable to pay for the plaintiff-turned-defendant’s costs to fight the claim. In another instance, conversely, a judge was able to shut down a serial litigant. In 2008, Jarek Molski, who had been wheelchair bound since a motorcycle accident two decades prior, was barred from filing future litigation by a federal judge. U.S District Court Judge Edward Rafeedie, who is now deceased, branded Molski as a “hit-and-run” plaintiff after he had filed more than 400 lawsuits for ADA noncompliance, accusing him of systematic extortion of businesses across California.
Easily exposed vulnerability
The problem goes much deeper than the obvious equal-access restrictions. On Mehrban’s website, he advertises minimal violations worthy of $4,000 payouts:
“Confined to a wheelchair in California? You may be entitled to $4,000 each time you can’t use something at a business because of your disability. Some examples are mirrors in restrooms that are mounted too high on the wall to see your reflection; dispensers (paper towel, soap, toilet seat cover, etc.) or clothing hooks that you can’t reach because they are mounted too high above the floor . . .. You probably run into such problems regularly.”
If one business falls short of one or more of these issues, it’s $4,000 for each violation, and because of the law, it’s basically no questions asked. But state Sen. Bob Dutton, R-San Bernardino and Riverside counties, is fighting back. He is trying to amend the state and federal law through his “Fix it” bill. The bill, introduced in late February, would allow business and property owners 90 days to fix any ADA noncompliance issues brought to their attention without the threat of legal action or monetary demand.
“Businesses are certified by the proper state agency, which makes sure that they are ADA-compliant,” said Larry Venus, communications director for Dutton. “Some businesses are renters in facilities and believe their lease covers renters, that the landlord is ADA-compliant, but both get sued. We are not talking about access. We aren’t talking about civil rights. This has nothing to do with access. The plaintiffs have no desire for it to be fixed.
“[Dutton’s] argument is that, with all the stuff on books, there is so much on the books a business owner can’t possibly know everything,” Venus continued. And Venus said he feels that the bill will amend the situation for both businesses and the disabled, though he noted other similar bills Dutton had authored addressing the issue have failed.
U.S. Sen. Dianne Feinstein, D-San Francisco, is also getting involved. In a letter on March 8 to Democrat and state Senate President Pro Tem Darrell Steinberg, Sacramento, Feinstein accused plaintiffs’ lawyers of forcing business owners into paying five-figure settlements by threatening potentially costlier lawsuits targeting minor violations under the state’s access and civil rights laws. If state legislators don’t act, she said, she may author federal legislation to shut down these serial litigants’ lawyers.
In a March 28 letter to Feinstein, Steinberg responded:
“I assure you that the California State Legislature is aware of the problem that a few professional plaintiffs continue to pose for small businesses. We will continue to monitor the workings of the legislation to see if further efforts are needed to encourage compliance and deter threats of frivolous lawsuits.” He noted in the letter that several bills have gone into effect that should help protect businesses from frivolous lawsuits.
The unfortunate development in all this, however, is the paranoia business owners may have now when dealing with disabled customers. Not all business owners feel this, but a repercussion to being sued can be fear of being sued again. While most business owners will comply to the best of their ability, there are still so many codes and, in some situations, it may not be cost-effective to fix the problem. But all it takes is one disabled person — a person in a wheelchair, one who is hearing impaired, a blind person — to break a business.
At this time, various chambers of commerce throughout Ventura County have said that they haven’t heard of businesses complaining about lawsuits regarding ADA noncompliance. While it may or may not be happening here, yet, to the degree it has occurred in Los Angeles County, it is certain that it has happened once with a serial litigant and an attorney who specializes in ADA-noncompliance lawsuits. Based on the survey of random local hotels showing that statistically too many are failing to meet the ADA standard for hearing devices, it is disheartening to think of problems to come for every business that has failed to meet all ADA codes and that encounters serial litigants like Johnson. It may seem like extortion, but it is the law for now. So if you haven’t met all the codes, better be prepared with your checkbook.
Calls made to Disability Rights California, an advocacy organization, were not returned.