Basketball Town: An ADA Lawsuit Casualty (Rancho Cordova, CA)

“As a result of all the legal fees associated with the lawsuit, we had no choice but to close the facility,” says Crystal Chodes, former marketing director for Basketball Town, a special events facility for basketball, volleyball, and other sporting events for children and families.

Basketball Town was forced to close because it could not afford the legal fees required to fight a lawsuit brought by a family member of a guest at a child’s birthday party hosted at the facility.

The facility hosted parties in two areas, one of which was on a mezzanine level.

“He invited one of his friends and that friend brought his uncle, who is in a wheelchair,” says Crystal. “Once we found out through the family that one of the guests expected was in a wheelchair, we actually offered to move the party downstairs and they declined. As a result, months later we were served with a lawsuit.”

Despite the lawsuit, the facility contended that it was, in fact, in compliance with the law regulating handicapped access for its patrons.

But compliance didn’t matter when the cost to defend oneself against a lawsuit overwhelmed the company’s bottom line. Basketball Town was forced to close its doors. The closure also came at a cost to the small business on the premises.

“There was a family pizzeria here and they had invested all of their money into this, they had their family involved in it, and now the facility’s closed,” says Crystal. “They have two kids that they’ve got to put through college. Just a small business, a great family, and they have lost everything – they’re starting over.”

She says: “If it can close an entire facility that’s meant to benefit children and families, it can hurt anyone. And that has to stop.”

Editor’s Note: California Senate Bill 1608 now provides a mandatory mediation alternative to litigation (with certain pre-conditions) to help prevent this exact thing from happening to other businesses.

Link: Faces of Lawsuit Abuse (with video)


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Disabled Man Sues Businesses for a Living (LA Times, CNN)

“Mundy is trolling for barriers to his patronage — a threshold too high for his wheelchair, a parking lot with blue-striped access lanes narrower than eight feet, a public restroom where the coat hook on the back of the door, if there is one, is above his reach.

One fighter in a burgeoning army of crusaders for disabled access, Mundy says he has filed more than 150 lawsuits in 18 months demanding damages from small businesses in violation of the exacting requirements of the Americans with Disabilities Act.

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.

“I don’t go looking for problems. I just notice them as I go around,” said Mundy, who moved to Los Angeles last year from Hawaii. It was in Honolulu that he learned the intricacies of the ADA as a building department employee, a de facto apprenticeship for his new career as a serial litigant.”

(Continue to Los Angeles Times for full article)

Link: Los Angeles Times (article), AOL News (CNN video)


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Lawsuits by the Disabled: Abuse of the System? (Time Magazine)

“Jarek Molski, 38, is a bit of a legend in legal circles. Disabled in a 1985 motorcycle accident that left him a paraplegic, he has filed 400 lawsuits against businesses under the Americans with Disabilities Act (ADA), alleging access violations. He was dubbed a “hit-and-run plaintiff” in 2004 by a federal judge and barred from filing any more lawsuits. Molski, of course, appealed to the U.S. Supreme Court, which finally rejected his case on Nov. 17 without comment. Molski must now petition the Central District Court of California and all state courts first before filing any new lawsuits. (See the top 10 underreported stories of 2008.)

“Molski may sound extreme, but he is far from the only plaintiff who has filed hundreds of lawsuits under the ADA in California. A significant number of people who sue under the ADA have legitimate grievances and appear to be motivated by a sincere desire for access rather than monetary gain. However, according to David Warren Peters, CEO and general counsel of Lawyers Against Lawsuit Abuse, a small group of opportunists and select law firms are responsible for a huge percentage of the lawsuits. “I’ve seen plaintiffs that make Jarek Molski look like a Cub Scout,” says Peters, whose San Diego–based firm represents and consults businesses and individuals accused of ADA noncompliance across the state and country. One plaintiff, he says, has filed more than 1,000 ADA accessibility suits alone.”

Link: Time

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ADA Lawsuits On The Rise

In an economy gone sour, as money becomes scarce, individuals and firms become more desperate to generate cash.  Already on the rise in California are lawsuits brought against mainly small businesses for not being compliant with the Americans with Disabilities Act (ADA).  A place of public accommodation that is deemed to have inaccessible elements can be considered as being discriminatory, carrying heavy fines, especially if a business attempts to comply but fails to do so according to the stringent code demands.  Largely because of the complexity of both Federal and State statutes and regulations (which at times are conflicting), over 95% of all the businesses threatened with an ADA lawsuit settle.  Given the increasing difficulty of finding a job, the temptation to bring suit becomes overwhelming especially because ADA complaints are legitimate complaints.  Often, disabled individuals work around the problem, but for a few plaintiffs and attorneys (who, of course, claim that business owners never make the right changes unless they are threatened), the temptation of getting quick settlement cash has led to thousands of businesses in California being threatened with an ADA lawsuit.  Settling may make the lawsuit go away — but it often leaves the businesses with a problem:  How does a business know how to properly comply to avoid a future lawsuit?

Yours Truly Accessibility Corporation (YTA) is a code consultation firm specializing in ADA compliance.  YTA works on the side of small businesses to avoid lawsuits so they can fix the problem immediately. Below is a list of four common accessibility problems YTA notes that small businesses often face:

1. Lack of proper signage.  Having the International Symbol of Accessibility on the main entrance is required by law.  But having proper signage to restrooms and other goods and services helps the vision impaired and individuals who are mobility impaired.  Placing the correct sign improperly on an inaccessible element can signal that a business does not really know anything about accessibility and is an easy target for a lawsuit.

2. Counter height is important, especially when dealing with little people, or wheelchair users.  Installing a counter too high, too low, or too narrow, can defeat the purpose of designating a counter as being accessible.

3. Kick plates on doors.  Doors made outside of California often have too much exposed glass.  Since wheelchair users use their foot rest to push open a door, a non-compliant glass door poses a hazard.  Not having enough smooth surface on the bottom of a door can also pose a trap, since the spokes of the wheelchair can be caught on a protrusion on the bottom of the door.

4. Inaccessible tables.  Restaurants or eateries that do not have accessible tables can accidentally cause their disabled patrons humiliation and inconvenience.  A lack of the proper number of accessible tables can send the message to willing customers that they are not welcome in the establishment.  Having a table that is too high or too low, or the space under the table too shallow or too narrow may defeat the purpose of designating the table as being an accessible accommodation.

Believe it or not, compliance with accessibility law can be very inexpensive — a few dollars for a sign (or even just moving an existing one) can save you tens of thousands of dollars in liability.  Moreover, compliance can qualify you for huge tax credits, which YTA can help you arrange.  Call 1-866-982-3212 or email if you have any questions.


New Administration brings ADA reform

Two large changes loom in the horizon for disability access in California. President-Elect Barack Obama plans to start a Disability Department to help integrate disabled Americans into mainstream society. Currently, a large number of Americans who have disabilities are barred from attending educational institutions or seeking employment with small businesses because 1) disabled Americans stand to potentially lose their government funding if they enter the work force and 2) small businesses can’t offer the comprehensive health care coverage that the disabled often need. Obama intends to change all this. His comprehensive plans include providing incentives for businesses to hire the disabled, incentives for businesses to provide increased health-care coverage and to fully fund the Disabilities Education Act. Combined with the ADA Amendment Act of 2008 which expands the definition of who is legally considered disabled, we can all expect a greater level of scrutiny applied to disabilities in general. With more disabled citizens out on the streets, going to school, going to work, and going out to lunch, there will be an definite increase in the need for public access on all walks of life.

The second change comes from the state level. Recently, Governor Schwarzenegger and the California State Assembly passed S.B. 1608, which is meant to curtail frivolous lawsuits and encourage business owners to make their buildings accessible. S.B. 1608 also has provisions for requiring cities and building departments to retain accessibility experts in order to ensure that the city become and maintain its accessible features. For those leasing or thinking about leasing, accessibility inspections become even more imperative. Instead of inheriting a building full of accessibility barriers, many business owners and landlords are taking the extra step to comply with the ADA. However, incomplete knowledge can give a false sense of security that still leaves your business open to a lawsuit.

For example, did you know that under California and Federal Law you need two signs for the restroom door?  Or that the accessible parking space must be on a level surface closest to the main entrance?

That’s why more and more businesses are turning to professional accessibility consultants before opening their doors. Protect yourself by requesting an accessibility assessment today. For questions, call Yours Truly Accessibility at (866) 982-3212.


U.S. Not Ready for Rise in Disabled (WebMD)

Experts warned in a report Tuesday that the U.S. is largely unprepared for a coming explosion in its disabled population.

As many as 50 million Americans currently live with physical or mental impairments that prevent them from taking on regular work or life activities. But that number is expected to skyrocket as an aging population and rising obesity rates take their toll on Americans, concludes a report issued by a panel at the Institute of Medicine (IOM).

“It becomes quite clear that disability will essentially affect the lives of most Americans,” says Alan M. Jette, the panel’s chairman.

The number of elderly Americans is projected to double by 2030, a factor nearly guaranteed to push up the disabled population, the report says. Still, obesity lingers as another factor that experts says has them worried.

Link to full article: U.S. Not Ready for Rise in Disabled

Sources: Institute of Medicine: “The Future of Disability in America,” April 24, 2007. Alan M. Jette, director, Health and Disability Research Institute at Boston University; chairman, IOM panel.  Lisa I. Lezzoni, professor of medicine, Harvard Medical School Institute for Health Policy; member, IOM panel. National Center for Health Statistics.


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July 2008 – San Ysidro, CA (San Diego Union Tribune)

“An attorney who has filed nearly 1,500 federal lawsuits in California since 1993 and dozens more in the county since 2004 to enforce the Americans with Disabilities Act has set his sights on South County.

“Attorney Theodore Pinnock has filed lawsuits against more than 60 businesses in National City, Chula Vista and several south San Diego communities, claiming people with disabilities were denied access. The 1991 federal ADA law ensures them access to public places and businesses.

“In San Ysidro, the business owners are fighting back. They’ve hired an attorney to challenge Pinnock’s claims. He has sued a number of stores in an older commercial district and at the Las Americas outlet center.

“On Thursday, Pinnock said he files multiple lawsuits in one area to get other businesses motivated to follow ADA rules. He said the government doesn’t do anything and businesses won’t do it on their own.”

Link: San Diego Union Tribune

ADA Lawsuits Attack Small Businesses (San Francisco Chronicle)

“In the past few months, a rash of ADA accessibility lawsuits has descended on neighborhoods across San Francisco from North Beach to Clement Street, from Polk Street to Geary Boulevard, enraging many local merchants and neighborhood advocates.

“Along with XOX Truffles, at least six other businesses on the same block of Columbus Avenue have been served, including Sushi on North Beach, Italian restaurant Da Flora and the sandwich shop Petite Deli. Last week Ricos, a burrito joint on the same the street, received their summons.

“On Polk Street, Teresa Nittolo, owner of the gift store Molte Cose, said that about ten of the neighboring stores along with her own have been sued.

“Many of these suits have been filed by one of a handful of disabled plaintiffs who are represented by Thomas Frankovich, one of the best known and most controversial ADA accessibility lawyers in California.

“Frankovich told me he doesn’t keep count but he guesses that he’s filed between 1,500 and 1,800 ADA accessibility lawsuits since 1994 and he currently has about 50 active ADA suits in San Francisco. Last year, he was the subject of a San Francisco Weekly cover story “Wheelchairs of Fortune,” detailing his multi-million dollar business in ADA suits. In 2006 he was suspended from filing any more cases in U.S. District Court in Los Angeles for six months after a judge ruled him a vexatious litigant.”

Link: San Francisco Chronicle

May 2008 – West Palm Beach, FL

“”He’s what we like to call a professional plaintiff,” says lawyer Joe Fields, who has represented many of the business owners and views Fox’s activities as more of a shakedown than a humanitarian campaign.

“After six years and 139 lawsuits, Fox isn’t surprised – or dismayed – by such assertions.

“”I have no problem being accused of being a professional whatever,” says Fox, whose childhood polio returned to put him in a wheelchair about 10 years ago. “I do this because I don’t want the disabled people who come after me to go through what I’ve had to go through.”

“The former Riviera Beach city councilman is far from alone. But while most of the thousands of other Americans With Disabilities Act lawsuits filed in federal court in the Southern District of Florida are on behalf of people associated with disabled advocacy groups, Fox flies solo.

“”I don’t like bureaucracy,” he says with a shrug.

“When he visits a car dealership, restaurant, gas station or shopping center that doesn’t have enough handicapped parking spaces or grab bars in the bathrooms, where counters are too high, doors are too narrow or other obstacles to the disabled are found, he gives [his lawyer] a call.”

Link: The Palm Beach Post


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October 2006 – Orange County, CA

“With all the deviants running around these days, you can only imagine what could happen in an Orange County public restroom. David Allen Gunther, a fellow who knows depravity well, said he was traumatized by his Nov. 11, 2003, experience at the Anaheim West Car Wash. Gunther, who is wheelchair-bound, found a bathroom mirror mounted a few inches too high for him to “preen” himself. In a legal complaint, he insisted the experience caused him “anguish, anxiety, humiliation, anger, frustration, distress, embarrassment, apprehension and disgust.” He demanded that the owner of the business pay him $4,000. Would you believe that Gunther has the law on his side?

“Slouched in his custom-made wheelchair at his daily hangout—a Garden Grove Starbucks—Gunther doesn’t look capable of throwing Southern California business owners into a panic. But he has. He’d left his usual head attire, an oily baseball cap, at home and instead had showered, combed his hair and worn a clean shirt for the interview. He’s got large brown eyes, a Johnny Cash face much older than his 43 years and delivers mostly clipped answers in a raspy cigarette voice. He’s wearing shorts today; gruesome scars mark his right leg. Appearances are critical, and on this late September afternoon, Gunther is angry that people don’t see him as a hero.”

Link: Orange County Weekly


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