The ADA Mafia: Legalized Extortion
by Paul D. McInerny

Is your business ADA compliant? Are you aware of the many regulations required of a business in order to be ADA compliant? Do you even know what ADA stands for? If not, then you are an easy target for a lawsuit.

There is a new mafia in town. Well, not really “new.” They came into existence in the early millennium and have been shaking down businesses all over California. Just like in the movies, they will discreetly stroll into a neighborhood business and look around. They won’t say much, if anything. They’ll look around, maybe check out the bathroom, take some photographs and then quietly leave. Another member of the mob will arrive a few days later, this time, to deliver a message. To borrow a phrase from the movie The Godfather, they will make you an offer you can’t refuse. To them, it’s nothing personal; it’s business. To the business owner, it is nothing more than a shakedown; extortion.

No doubt about it. These are tough economic times and analyst say it will get worse before it gets better. Almost everyone is cutting back, making sacrifices and trying to survive. People are becoming innovative in trying to earn and save a buck. During these difficult times, we see and hear examples of the goodness of man towards one another, but we also hear how some people take advantage of others.

The American’s with Disabilities Act (ADA)
On July 26, 1990, President George H.W. Bush signed into law the Americans with Disabilities Act of 1990 (ADA) -- the world's first comprehensive civil rights law for people with disabilities. The American’s with Disabilities Act (ADA) was a milestone in the protection of disabled citizens. The comprehensive act included categories such as employment, public services, public transportation, public accomodations, communications and even a miscellaneous section to cover everything else. As a direct result of the ADA, there are strict guidelines and regulations set forth for businesses to adhere to.

Non compliance with ADA laws can have severe reprecussions for business owners. Identified violations cannot be ignored and business owners must correct any deficiencies. Typically, the complaint can be as minor as an improper disability sign. You know, the signs that let know your car can be towed away. Or the pipes under the bathroom sink were not padded, or that there wasn’t a marked pedestrian passage way in the parking lot. This is not to imply that these type of violations are insignificant and do not need to be corrected for the benefit of the disabled, but wouldn’t it be more practical in terms of time and money spent to first send a letter of notice citing the violations and allowing a set time period for the violations to be corrected? A pre-lawsuit notice would certainly give the business owner the opportunity to make the necessary corrections.

Unfortunately, there are folks out there who have chosen to make a living by actively seeking out ADA violations and then filing lawsuit after lawsuit. These lawsuits appear to be filed in order to collect money and not to address a perceived wrong. Are these lawsuits filed by social activist and crusaders with the best interest of everyone involved, who are taking on big businesses or corporations that thumb their collective noses at the disabled and the ADA? Or, are they opportunists hitting the local business down the street seeking monetary compensation by filing frivilous lawsuits with the expectation of settling out of court?

Opening the gates
A brief history of one event that opened the flood gates for ADA lawsuits. In 2004, a gentleman by the name of Jerry Doran drove to Disneyland. Doran, who is mobility-impaired and uses a wheelchair-accessible van to travel, stopped at a 7-Eleven store in Anaheim only to find that the store had no van-accessible parking. Its wheelchair ramp was too steep for him to ascend and a mat obstructed the entryway, making it impossible for a person in a wheelchair to enter the store.

Doran waited outside while his companions went into the store for him. When he returned from his trip, he sued for injunctive relief under Title III of the Americans with Disabilities Act (ADA) and for injunctive relief and monetary damages under California law. Doran's suit didn't just deal with the parking lot and the inaccessible ramp-instead Doran's lawyer asked the court to allow him to conduct a full inspection of the 7-Eleven store to identify other ADA violations that would have affected Doran if he'd been able to enter the store.

Our beloved 9th Circuit ruled not only that Doran and other ADA plaintiffs should be allowed to inspect sites for violations they did not encounter, but also that they could sue to remedy those violations (source: Inside Counsel, February 2008).

The Result
So, how bad would it get? One blind student from the University of California Berkeley decided to sue Target because the company Web site was hard or sometimes impossible for blind people to use. It claimed in the lawsuit that Target violated the Americans with Disabilities Act and some California state laws. The judge's ruling found that California state disability laws required commercial Web sites to allow handicapped persons to perform the same tasks as non handicapped patrons.

Susan McBride filed an ADA lawsuit against her employer, the Planning Department of Detroit, Michigan. She claimed that her work environment violated the Americans with Disabilities Act and wanted her employer to ban co-workers from wearing fragrances. She alleged that the city would not enforce a no-scent policy in the workplace to accommodate her disability.

The January 6, 2009, issue of The California Civil Justice Blog (the official blog of the California Civil Justice Association of California) reported the following:

Though serial plaintiff 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.
Attorney 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.

Orange County, California
In an article from the January 16, 2009, issue of the Orange County Register, it was reported that Noni Gotti, a San Diego resident, had filed 40 lawsuits against 111 other small businesses and landlords in the Santa Ana area from August 25 to October 8, 2008. In every case, Noni Gotti was the plaintiff and the San Diego law firm of Pinnock & Wakefield was her attorney.

Mr. Pinnock describes himself as an attorney who handles all kinds of civil and criminal cases and who reluctantly started handling cases for the disabled in 1994. He said disabled lawsuits account for 90 percent of his practice now. The Sacramento Bee said he has filed more than 2,000 such cases (source: Orange County Register). 2,000!

In 2005, Attorney Theodore Pinnock, demanded over $200,000 from just 67 historic small businesses in the small mountain community of Julian, California (savejulian.com).
Mr. Pinnock got the attention of U.S. District Judge Jeffrey T. Miller, and on March 23, 2007, the judge ordered Mr. Pinnock to pay more than $15,000.00 in fees and take four hours of legal ethics training through the state bar.

Undeterred, he warned people, “"If people think that the Mouet ruling will stop me, they are mistaken. Being born with severe cerebral palsy did not stop me. Being born poor and black did not stop me. Being in an institution for ten years did not stop me” (North County Times).

Approximately four months later, Mr. Pinnock was still going strong.
From the Surfwax Disabilities News:

ADA attorney targets Vista Village Jul 12, 2007
VISTA -- A San Diego attorney who has filed more than 1,200 lawsuits against businesses for allegedly violating disability access laws has targeted the owner of Vista Village, the city's showpiece shopping center, as well as three businesses there. Attorney Theodore Pinnock filed suit June 6 against Vista Village LLC, Lamppost Pizza, Venus Beauty Salon and JF Japanese Cafe on behalf of Diane Cross, a member of disabled-advocacy group Outerbridge Access Association (North County Times).

Mr. Pinnock stated, “The Lord chooses you for things you didn't plan," he said. "Now I love what I do. Now I'm very proud of the work I do."

Diane Cross
As of October 31, 2008, the State of California certified a group of inspectors to assist business owners evaluate accessibility for the disabled access. Diane Cross is not on the list, but that does not stop her from visiting restaurants or commercial businesses to assume the role of an inspector, as allowed by our 9th Circuit Court of Appeals. The difference between Diane Cross and an actual certified inspector is that Diane Cross will file a lawsuit asking monetary compensation for every violation she observes.

Diane Cross has been working with San Diego based attorney’s Michelle and David Wakefield, formally affiliated with Mr. Pinnock. According to Justia.com, Federal District Court Filings and Dockets, a Diane Cross with the Outerbridge Access Association, has filed lawsuits against businesses such as Home Depot, Joes Crab Shack, Ross Dress for Less, Sport Chalet, Fry’s Electronics, Mira Mesa Market Place East, Marie Calendar’s, Oceanside Baja Lobster, Lamp Post Pizza, Venus & Mars Beauty Supply, Wendy’s, Nordstrom’s, JC Penny, Garden Fresh Restaurant, Dollar Tree Stores and Michaels Arts and Crafts; all for violations of the Americans with Disabilities Act.

Records found in the Civil Case section of the Superior Court of Orange County, reveal that a Diane Cross filed at least five (5) civil rights cases in 2008 and four (4) in 2009. In each of the cases, Pinnock or the Wakefield’s are listed as attorneys.

Diane Cross is not alone. There are hundreds of ADA cases and news articles that have chronicled the likes of David Allen Gunther, Jarek Molski, Patricia A. McColm, Attorney Thomas Frankovich, and Roy Davis Gash (who, so far, has filed eight (8) ADA lawsuits this year in Orange County, California). In fact, in 2008, attorney’s Pinnock and Wakefield along with Mr. Roy Gash and Diane Cross worked together and sued the Harbor House Café in Dana Point, California for ADA Civil Rights violations.

Many businesses opt for a settlement instead of taking the issue to court. Movie star Clint Eastwood took his case to court, when in 1997, Diane zum Brunnen, who has multiple sclerosis and uses a wheelchair, sued the famous actor/director, claiming that Eastwood's Mission Ranch Inn in Carmel was inaccessible when she and her husband visited. She was asking for monetary damages and for the court to force Eastwood to make changes so the hotel would be more accessible to people with disabilities (source: Inclusion Dailey Express). Mr. Eastwood took her to court and lost.

A Viable Solution
Florida Congressman Mark Foley tried to get his ADA Notification Act into the U.S. House of Representatives, at least twice, without success. If enacted, the bill would have required a person with a disability, or that person's representative, to give a business or public entity a written explanation as to how it violated the accessibility provisions in the 1990 Americans with Disabilities Act. The business or public entity would then have up to 90 days to correct the violations before a lawsuit could be filed. To a reasonable person, this would appear to be a rather common sense compromise that would:
• help ease the court load regarding ADA lawsuits,
• allow the business owner ample time to make the needed corrections and be ADA compliant, and
• ensure that disabled individuals had access to the establishment.
A win-win situation for everyone involved, right? After all, these lawsuits are not supposed to be about money, but to get businesses to be ADA compliant.

In response to the proposed bill, the National Council on Independent Living (NCIL) issued a statement, arguing that, "We say; if there are problems with lawyers and their ethical practices, don't fix the problems by eroding the civil rights of people with disabilities!" What about problems with professional/serial/predatory plaintiffs and their ethical practices?

In addition, disability rights groups argued that if the bill passed, people with disabilities would have the unfair and unusual burden of enforcing the federal law. But isn’t that what is happening now? Professional/serial/predatory plaintiffs are now going from business to business “enforcing” the ADA laws through lawsuits and it certainly does not appear to be an “unusual burden” for these plaintiffs or their attorneys. In fact, it appears to be a very, very lucrative business. Remember Mr. Pinnock?

What became of the bill? Even with the high profile support of Mr. Clint Eastwood, the bill died a quiet death. If someone as well known and with far more resources as Mr. Eastwood cannot convince the legislature, then what chance does the average neighborhood business owner have against these lawsuits? And so they settle out of court and the professional/serial/predatory plaintiff’s move on to their next victim.

The Long Beach Area Chamber of Commerce apparently had enough of the professional/serial/predatory plaintiffs. In 2008, they supported Senate Bill 1608, a piece of legislation that would help educate businesses on ADA regulations. Portions of SB 1608's provisions went into effect January 1, 2009, while implementation of other provisions will be delayed until July 1, 2009. The Chamber is also encouraging the state to “draft legislation which would give businesses time to correct the ADA violations before any lawsuit could begin” (The Advocate, Fall 2008).

Fight or Settle
Mediators and attorneys frequently stress the expense of litigation as the primary reason to settle a lawsuit. Many defendants feel their decision to settle is made while staring down the barrel of a gun (Settle it Now, November 2008). The business owners see an injustice and feel they are being extorted. When they consult an attorney, they are met with an explanation of what would be best for the business and how to settle the lawsuit. Not oppose the lawsuit – settle the lawsuit.

In fact, the ADAlawsuits.com web site states: Short of a legislative fix, we believe that the best solution to this problem is to quickly route defendants to the attorneys who can conclude their cases as inexpensively as possible, and we believe those will normally be the attorneys who have opposed the plaintiffs suing them more than any other(s).

In other words, settle out of court. It will still cost the business owner money, but is far less expansive than fighting in court. For serial plaintiffs and lawyers, it is a guaranteed source of income.

People suing businesses for ADA violations even though they suffered no physical injury or actual discrimination: How is this possible? California has what is called the Unruh Civil Rights Act, which provides a minimum “statutory penalty of $4,000 for any accessibility violation”. Many plaintiffs' lawyers--and more disturbingly, a increasing number of professional/serial/predatory plaintiffs earn a living by suing for recoveries from multiple businesses that have easy-to-identify technical violations of the act, such as missing signs identifying reserved parking (source: Inside Counsel, February 2008).

David Warren Peters, CEO and general counsel of Lawyers Against Lawsuit Abuse, says a small group of opportunists and select law firms are responsible for a huge percentage of the lawsuits. "Opportunists see this as a great way to make $12,000 a day or more just by eating out," says Peters. "Easy money with the help of the courts is bound to attract opportunists" (source: Time.com, 12/29/08).

"California may be the worst in the country," says Peters, citing several factors for potential abuse, chief among them two California statutes that provide $1,000 or $4,000 in minimum damages, plus attorney fees, per each successful claimant. Many claimants multiply these damage amounts by the number of conditions they observe at a property. “This frequently results in $50,000 or more in damage demands,” says Peters. Some serial claimants will file for damages against dozens of businesses they say they have visited on the same day or for repeated visits to an establishment (Alison Stateman / Los Angeles Monday, Dec. 29, 2008).

It could get much worse. The ADA Amendments Act, which went into effect January 1, 2009, adopted a broader definition to whether someone could be considered disabled. Under the new definition, someone can be considered disabled if he or she has insomnia, stutters when speaking, suffers from dyslexia, or even has attention deficit disorder (Legal Alert for Supervisors, 11/1/2008).

According to the Inside Counsel, such a litigation industry isn't possible in most other states because the ADA does not allow private plaintiffs to sue for money damages. And in Florida, which also provides a statutory penalty for accessibility violations, the courts have curbed the trend of serial litigation by limiting the right of plaintiffs to sue for violations they did not personally experience.

In addition to following the law, being ADA compliant is good business. It ensures that all potential customers have access to your business and facilities. Many business owners may not be aware of an ADA violation on their premises and would welcome the opportunity to rectify the problem. The hard reality of ADA is that it is virtually impossible to be 100% compliant, and without a common sense approach to resolution that would benefit everyone, the professional/serial/predatory plaintiffs and their attorneys will continue to troll the communities and file lawsuit after lawsuit. The motivation of the professional/serial/predatory plaintiffs is not to right a wrong. They are motivated by pure greed.