About 10 Redwood City businesses which are among hundreds in the state that have been hit this year with Americans with Disabilities Act lawsuits have joined forces to defend themselves in court and try to get the cases dismissed.
Mostly restaurant owners, they were sued a few months ago by Brian Whitaker, a quadriplegic who uses a wheelchair for mobility. He claimed they failed to provide outdoor dining surfaces with sufficient knee and toe clearance for his wheelchair.
Camelia Coupal, who owns the Coupa Café on Marshall Street, was sued in May. “We are a group right now of 10 restaurants and all of us have been sued by the same guy 10 days apart,” she says. “Everybody got the same claim, copy-paste the same complaint.”
Fera Hashemi and her husband own Arya Steakhouse. They didn’t know they’d been sued until she was contacted by attorneys offering defense services. Hashemi reached out to Regina Van Brunt, executive director of the Downtown Business Group, and discovered that “the whole block, my entire block has received this lawsuit.”
Van Brunt says about 15 businesses were sued. Some owners are embarrassed or don’t want litigation hanging over them and have decided to settle. But most others jointly hired attorney Martin Orlick, who is representing about 60 businesses from San Francisco to Mountain View dealing with similar lawsuits.
“Any restaurant that deals with lawsuits, you end up settling just because litigating costs so much,” Coupal says. “In this case, we feel it’s just morally wrong, something going wrong here.”
Orlick says the same three plaintiffs—Whitaker, Scott Johnson and Orlando Garcia—have filed multiple suits during the last three or four months. Their law firm is San Diego-based Potter Handy LLC, which specializes in ADA litigation through its Center for Disability Access.
Outdoor Dining Spaces
There’s been an “aggressive push,” Orlick adds, by Potter Handy to sue restaurants primarily for the parklets and other outdoor seating arrangements that have helped them survive through Covid.
“All of my clients are struggling mightily after Covid and they’re fearful that the Delta strain doesn’t become the next shutdown,” Orlick says. He has filed motions in federal court to dismiss the lawsuits.
Even if summary judgment is granted, plaintiffs in such cases can still pursue damage claims in state court. They can seek attorneys’ fees and can invoke a California law imposing $4,000 penalties per ADA violation.
Coupal says she does have ADA-compliant tables outdoors. She has reviewed camera footage and found no wheelchairs coming to her café before the suit was filed. Likewise, Hashemi doesn’t know when Whitaker visited Arya, which is only open for dinner but says each dining area has a wheelchair-accessible table. Hashemi had had a Certified Access Specialist inspection done two years ago to make sure Arya was compliant.
When the disabilities act was passed in 1990, a federal agency wasn’t designated to enforce violations. That task was left to disabled people—and their attorneys—which critics say has allowed serial litigants to go after businesses for minor violations and collect thousands of dollars.
“I’m not saying people shouldn’t accommodate,” Hashemi says. “I’m just saying if the accommodation is made why do they get to make money out of it?”
In San Francisco, District Attorney Chesa Boudin in July announced an investigation of “potentially fraudulent suits” under the ADA targeting Chinatown merchants. Though a DA can’t get involved in private civil suits, San Mateo County Deputy District Attorney Joel McComb has been asked to review “whether the plaintiffs are violating the law” and if the DA would have jurisdiction if that were true. McComb, who deals in consumer protection, couldn’t say how long the investigation will take but “I can tell you it is a priority.”
A Potter Handy attorney could not be reached for comment, but a San Francisco Chronicle story about the Chinatown cases quoted attorney Dennis Price as saying that “every single suit filed by our firm is based on investigated and confirmed violations of state and federal law.” Businesses which fail to comply with the law “discriminate against not just our clients but the disabled community generally.”
Continuing, Price is quoted as saying it was a “shame to see DA Boudin, who was elected as progressive, turn his back on civil rights enforcement and engage in this one-sided sensationalism.”
Redwood City Mayor Diane Howard thinks owners should be given an opportunity to fix a problem before being penalized. “I do know that there is a problem with the law the way it is written, and it does need to get fixed. I’m hoping it will.”
Photo of Fera Hashemi by Jim Kirkland