San Francisco Chronicle
Disability lawsuits spiking in Chinatown
Federal courts in California have for years been deluged with suits accusing businesses of violating the rights of disabled customers with ramps, curbs, sales counters and other structures that fail to meet legal standards under the Americans with Disabilities Act. But a series of recent suits filed in San Francisco’s Chinatown is alarming shopkeepers and angering District Attorney Chesa Boudin.
One defendant is Fanly Chen, owner of the GoApple store in Chinatown, which repairs cell phones and sells accessories. Chen, the single mother of a 9yearold boy, says she is almost a year behind in her rent because of losses during the pandemic. She was recently served with papers from lawyers for a wheelchairusing customer saying her countertop was too high and warning that she faced damages and legal fees for that and other violations of the disability law.
“I couldn’t sleep because I don’t know what to do,” said Chen, who is working with
other Chinatown merchants to hire a lawyer. “This whole case — I can’t afford it.”
Neither can other small businesses, said Boudin, who has announced plans to investigate the wave of suits and the lawyers behind them. He has also established a working group, with representatives from the Chinese American community and the disabled community, to advise businesses of their rights and obligations.
There are several reasons for the lawsuits, including limited knowledge of the law’s requirements; the cost of compliance, particularly in older buildings; and, in Boudin’s view, plaintiffs’ lawyers who are less interested in aiding people with disabilities than in lining their own pockets.
But a principal reason is the federal law itself, adopted to protect people with disabilities from discrimination in employment, education, transportation and access to any facilities open to the public.
Passed in 1990 with bipartisan support, the ADA, unlike other civil rights statutes, did not assign a federal agency to enforce its guarantee of equal rights for people with disabilities or punish wrongdoers. It left that task to disabled Americans and their lawyers — like the San Diego law firm that has filed more than 1,500 suits in California this year.
The ADA “didn’t come with resources or effective mechanisms to enforce it,” Boudin said in an interview. “That’s not fair to the disabled community, not fair to the momandpops, the small businesses targeted in the latest wave of filings . ... These lawsuits are focused far more on enriching plaintiffs’ lawyers than they are on vindicating disability rights.”
But a longtime disability rights lawyer says the law is working the way it was designed to work.
Celia McGuinness of Oakland has sued hotels, restaurant chains and even police officers for violating the rights of people with disabilities and served two terms on the California Commission for Disability Rights, appointed by thenGov. Jerry Brown. She noted that the law, signed by President George H.W. Bush, had strong Republican support — the vote among Senate Republicans was 328, and backers included Sens. Mitch McConnell of Kentucky, Strom Thurmond of South Carolina and Pete Wilson, who later that year would be elected governor of California.
It was drafted “as a smallgovernment solution, that the market would take care of enforcement,” McGuinness said. “The people who were injured could file lawsuits and the people who caused the harm would end up paying.”
And a federal appeals court says even the filing of hundreds of suits by a single plaintiff, which in other contexts might be evidence of abusive litigation, can be traced to the design of the ADA.
In a ruling in 2007, when suits under the law were proliferating, the Ninth U.S. Circuit Court of Appeals in San Francisco noted that the statute allows plaintiffs to sue only for barrier-removing injunctions, not monetary damages. Plaintiffs may also seek attorneys’ fees, typically at least $25,000 per case, and in California can invoke a state law imposing civil penalties of $4,000 per ADA violation.
“As a result,” the court said, “most ADA suits are brought by a small number of private plaintiffs who view themselves as champions of the disabled . ... For the ADA to yield its promise of equal access for the disabled, it may indeed be necessary and desirable for committed individuals to bring serial litigation advancing the time when public accommodations will be compliant with the ADA.”
One such plaintiff is Albert Dytch, 71, a marriage and family therapist in Oakland, who suffers from muscular dystrophy and has filed 180 lawsuits since 2009. As he told the New York Times, “The law is subsidizing me to correct things. Then I earn money to defray the exorbitant costs of being disabled.”
California’s most prolific ADA law firm is Potter Handy in San Diego, which has an affiliate called the Center for Disability Access and has filed more than 1,500 suits so far this year. Its approach was illustrated in a suit filed in February by Orlando Garcia, one of 157 cases he has filed in San Francisco federal courts.
Garcia has cerebral palsy, uses a wheelchair and travels frequently, the suit said, “because he is an ADA tester and actively engaged in finding lawbreaking businesses and hauling them before the courts to be penalized and forced to comply with the law.”
The suit, still pending, accuses the Chancellor Hotel, on Powell Street in Union Square, of maintaining a website that failed to specify any protections it has for disabled guests, such as the dimensions of doors and desks and whether toilets have grab bars. Garcia has not yet patronized the hotel but is being deterred by its lack of specified facilities and is entitled to $4,000 for the violations, his Potter Handy lawyers said.
Another Potter Handy client, Scott Johnson, has filed thousands of ADA suits — more than 6,250 since 2003, according to the Sacramento Bee. Johnson, a quadriplegic, is also an attorney in Carmichael (Sacramento County) and was criminally indicted in 2019 on charges of failing to report income from his lawsuits and settlements. With the charges still pending, Johnson has shifted his focus to the Bay Area and reportedly has filed more than 1,000 suits in the past two years. Court records show many of the suits have been settled, for sums not publicly disclosed.
Recently, Garcia sued Chinatown businesses, including the Dim Sum Corner restaurant on Grant Avenue. The suit said he visited the restaurant in June and encountered steep entrance ramps, an outdoor dining area bordered by steps rather than ramps, and tables that were too low for his wheelchair, all in violation of the ADA.
The restaurant’s coowner, Jaynry Mak, said the suit seemed like “kind of a shakedown,” and that no one in the restaurant could even recall a wheelchairusing customer in June.
Mak is also a lawyer. “Fortunately with my background, my partners and myself can fight this lawsuit — we’re not inclined to pay them anything,” she said in an interview. “But then I thought about all the other merchants in Chinatown, who aren’t as fortunate, who don’t speak the language, who are intimidated by lawsuits. It’s extremely stressful for them.”
Lily Lo, manager of the Northeast Community Federal Credit Union in Chinatown, said about 170 business and property owners attended a workshop she held two weeks ago, and many reported being hit with disability suits by Garcia and others. Some of the suits claimed lack of access to restaurants as early as March, when the restaurants hadn’t yet reopened to indoor dining, Lo said.
“I told them you just have to have an attorney to represent you. You can’t pay them (the plaintiffs),” Lo said. “I advised them, be strong, stay positive. We’re trying to get businesses together, talking to attorneys” to find one or more who can handle multiple cases, she said. “Some people say, ‘I just want to get rid of it. I can’t sleep.’ ”
Meanwhile, Mak said, businesses in Chinatown have been battered by the COVID19 pandemic, in part because of the widespread perception of the disease as a “Chinese virus.”
“Prior to the pandemic we had about 200 storefronts on Grant Avenue, and now only 40 are open,” she said. “To be hit with these fraudulent, frivolous lawsuits is another challenge for our community (as we) try to get back on our feet.”
Boudin said plaintiffs’ attorneys who are abusing the law for profit could be charged with criminal extortion, could be sued by his office for unfair competition and could also be referred to the State Bar for disciplinary investigation.
It’s fine for the suits to target “chain companies, public agencies, big entities like ballparks,” the district attorney said, but small companies run by immigrants usually lack access to legal help and have little choice but to settle for cash payments.
In response, Dennis Price, an attorney with Potter Handy, said by email: “Every single suit filed by our firm is based on investigated and confirmed violations of state and federal law. While it is true we have filed some suits against businesses in Chinatown, that is because those businesses have failed to comply with the law and as a result discriminated against not just our clients, but the disabled community generally.
“It is a shame to see DA Boudin, who was elected as progressive, turn his back on civil rights enforcement and engage in this onesided sensationalism,” Price said.
As the lawyer and his colleagues point out, the suits allege violations of legal standards for disability access — inclines of access ramps, width of store aisles, heights of countertops and restroom facilities. Settlements generally require the owner to meet those standards, a mandate that may be expensive but also increases compliance with the law and improves access for other customers with disabilities.
And without a regulatory agency to oversee compliance and punish violators, private lawsuits, even serial filings with virtually identical wording, may be the only practical existing means of enforcing the ADA.
Boudin wants state and federal governments to provide funds for businesses to meet the law’s standards. McGuinness, the Oakland disability rights attorney, says the law should place the financial burdens on property owners, whose leases commonly require tenants to pay the costs of accommodating patrons with disabilities— and that businesses should not use people with disabilities and their advocates as a “convenient scapegoat.”
Hene Kelly, former chair of the state Democratic Party’s Disability Caucus, said the problem is a law that “had really no teeth” and served as an invitation to profitdriven lawyers.
“It’s important to allow all people to be able to get in and get out of the store, in and out of a restaurant, to be able to go to a play and not have to say I can’t get in because I can’t walk up those stairs,” said Kelly, 79, a Democratic Party regional director and a retired schoolteacher who has had periodic mobility problems. “On the other hand, there’s also the problem of people using this to make their own money.”
The solution, if there is one, she said, is for the state to strengthen its disability laws, for local governments to fund repairs in old buildings like those in Chinatown, and for the legal system to deal with abusive attorneys.