by Abigail Sterling and Allen Martin
SAN FRANCISCO (KPIX 5) -- A recent spate of lawsuits against Bay Area businesses for violations of the Americans with Disabilities Act has the merchant community on edge. That's because it turns out just one disabled man is behind dozens of ADA lawsuits on both sides of the bay.
It's a devastating blow to merchants involved who are just barely emerging from the worst of the coronavirus pandemic. But KPIX has discovered for plaintiffs in California, it can be a gold mine.
Life was returning to normal in San Francisco's Chinatown until a certain disabled man in a wheelchair showed up. In just a couple of weeks in June, Orlando Garcia filed dozens of lawsuits against businesses along Grant Avenue and Irving Street, claiming they failed to provide wheelchair access.
"You can see from the video that they have no intent of actually visiting the business to be a customer, they went around with like a tape measure," said Jaynry Mak, owner of Dim Sum Corner and one of the merchants sued. "It's kind of a shakedown for small mom-and-pop businesses."
Garcia alleges Dim Sum Corner's entrance does not have a level landing and outdoor dining areas set up during the pandemic are not wheelchair accessible. Mak says she never saw Garcia enter her restaurant and she says other merchants told her they never saw him enter their businesses either.
"These businesses are already struggling for a lifeline to stay open," said Mak. "And now this."
Across the bay in Alameda, it was the same scenario where Garcia also sued the owner of Lola's Chicken Shack on Park Street.
"To me, it's extortion pure and simple," said owner Mark Rogers. "If I was incorrect in something I would want to fix it. If you gave me a ticket and said, you've got seven days, 14 days, whatever it may be, I'd do it gladly. That's a win for me, a win for the handicapped person. But right now it's only a win for somebody who is laughing at the court system, which isn't right."
At least a dozen other stores on Park Street got slapped with lawsuits filed by Garcia around the same time in May and June and are facing thousands of dollars in damages and legal fees.
Colin Cross and his wife own Lauren's Closet, a children's consignment store across the street from Lola's. "July 15th around here is when things started to get back to normal. And now we get a lawsuit. It's like come on, give us a chance to get back on our feet!" said Cross.
Garcia has filed more than 100 lawsuits this year alone. He's what is referred to as a "serial plaintiff" in a cottage industry that is especially lucrative in California. That's because while federal law doesn't provide for damages, California state law does.
"California, it's dramatically out of whack, so to speak," said Cris Vaughan, an ADA defense attorney. He says under California's Unruh Act, civil rights law plaintiffs can also claim up to $4,000 dollars per visit. And they can visit the same business multiple times.
"So that's why we have so many of these lawsuits in California," said Vaughan.
ADA filings increased 21% percent to 6,055 in California in 2020, while other states saw a decline. The increase is mostly due to just a handful of serial filers like Scott Johnson, probably the most prolific. Others are getting close behind, including Garcia.
The law firm that represents them is San Diego-based Potter Handy. According to court records it has filed over 1500 ADA lawsuits since January. "We are attorneys. This is a civil right that we specialize in," said Potter Handy attorney Dennis Price.
Price says businesses have had 31 years to comply with the Americans with Disabilities Act of 1990.
"Every one of these cases are based on a legitimate violation. We would like them to stop and we're going to make them stop," said Price.
"It is wrong I think to do it just for the money," said Hannah Keiser, a disabled tourist in a wheelchair that we ran into in Chinatown. "There are always things that could be improved. Some older buildings could use a few ramps, making sure that doors are actually big enough for bigger wheelchairs, that's a very big problem. But I wish they would do it more for wanting to help rather than the money."
San Francisco District Attorney Chesa Boudin has launched a criminal investigation into the series of lawsuits.
"They are exploiting and extorting small businesses, not to vindicate the critical rights or inclusion of the disabled, but rather to shake down and extort those who are already suffering," said Boudin.
But in Alameda, Mayor Marilyn Ezzy Ashcraft is holding back.
"I would like to think that plaintiffs have pure motives that they are simply looking out for the best interest of themselves and others who are similarly situated," said Ashcraft.
Ashcraft says it should be up to the local merchants association, not city hall, to try to mediate.
"You know, this is federal law. If there needs to be a change in the law and the procedures, that's Congress," said Ashcraft.
Ashcraft also pointed out the ADA is a civil rights law, not a building code, which is why you can pass all your building inspections and still be liable. Merchants' best bet to make sure they are compliant is to hire a so-called Certified Access Specialist.
Information from the California Division of the State Architect:
The Division of the State Architect (DSA) was authorized by the Legislature in 2003 to create the Certified Access Specialist (CASp) program. The certification program is designed to meet the public's need for experienced, trained, and tested individuals who can inspect buildings and sites for compliance with applicable state and federal construction-related accessibility standards. The intent of the program is to encourage business owners to proactively determine if their facilities are in compliance with applicable construction-related accessibility standards and if not, remedy their facilities to provide individuals with disabilities with access to their goods and services as required by state and federal civil rights laws.
A CASp is a professional who has passed an examination and has been certified by the State of California (DSA) to have specialized knowledge in this area. DSA is the only entity that administers the examination and only by passing the examination administered by DSA can a person become a CASp. More information on becoming a CASp is located on our Apply And Maintain CASp Certification webpage.
The list of CASps is published by DSA and available here: Certified Access Specialist List. Business owners learn about CASps from resources like their local government (city and county websites and building department staff) and outreach by state entities like DSA, the California Commission on Disability Access, the Department of Rehabilitation and the State Treasurer's Office. Occasionally, members of the legislature request presentations for their constituents.
Having a business/property reviewed by a CASp shows that business owners care about ensuring equal access for all customers, and the intent to comply with state and federal civil rights laws pertaining to facility disability access. A CASp will know which standards apply to a property based on the age of the facility and its history of improvements. While a licensed design professional, such as an architect or engineer, can provide an access compliance evaluation of a facility, only a CASp can provide services that offer "qualified defendant" status in the event of a construction-related accessibility lawsuit. The "qualified defendant" status entitles the business owner to legal benefits such as reduced statutory damages, a 90-day stay of court proceeding and an early evaluation conference. With a CASp inspection that's performed according to the Construction-Related Accessibility Standards Compliance Act (CRASCA, Civil Code §55.51-55.545), the owner will receive a report on the status of compliance. If improvements need to be made, that report will include and list of items needing correction as well as a schedule (developed with the owner) for completing each of the items. Information on hiring a CASp is located on our CASp Property Inspection webpage.
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