Already hurt by the pandemic, several downtown Los Altos businesses have recently suffered another blow – Americans with Disabilities Act lawsuits filed by serial plaintiff Scott Johnson. Johnson, a quadriplegic, has a history of suing businesses throughout the state for violating the ADA. Johnson has filed more than 6,250 lawsuits since 2003, according to a June 22 article in the Sacramento Bee. Established in 1990, the ADA aims to promote accessibility, regulating aspects of businesses such as table height, door weight and parking spaces.
When Sue Nesmith helped a man in a wheelchair navigate at Los Altos Hardware last March, the business owner said she didn’t know she would soon be sued for ADA noncompliance. The store was in the process of a remodel, according to Nesmith, and the accessible parking spaces were temporarily blocked off, violating the ADA. Nesmith’s daughter, Nina, said the man – who she later learned was Johnson – never mentioned the lack of accessible parking to Sue.
“Especially just coming out of COVID, when everyone is just trying to survive and get our community back up and running, it’s definitely hurtful to be slapped with something else,” Nina said. “It’s not that we don’t want to be ADA compliant, it’s just that it’s victimizing small businesses that are already having a tough time getting on their feet.”
Nina is working with the Los Altos Village Association to build a support network for local businesses that have been or could be sued by the likes of Johnson. As the businesses work together, owners are making changes to their stores and restaurants to become more compliant with ADA regulations.
Ellen Biolsi, owner of Cranberry Scoop on State Street, said she recently modified her counter’s height after she learned it did not comply with ADA regulations. “It’s not just to protect ourselves, it’s to make sure we are doing the right thing, being compliant,” Biolsi said. “We certainly don’t want someone who’s in a wheelchair to have a bad experience or have it hard for them to shop.”
Johnson has begun to target restaurants’ outdoor seating as well. He sued Satura Cakes on Main Street in June for a lack of accessible outdoor seating; owner Seung Ho Jung said he had already settled with Johnson in the fall of 2020 for other ADA noncompliance issues.
Such lawsuits are especially common in California, according to Steve Schraibman AIA CPE CASp, president of the San Diego-based Arcor-Inc, which specializes in Certified Access Specialist (CASp) certification. The state is subject to 42% of the ADA litigation in the entire country, despite being home to only 12% of the U.S. population. The disparity is largely due to California’s Unruh Civil Rights Act, which Schraibman said allows disabled plaintiffs to automatically recover a minimum of $4,000 in statutory damages if they prove they visited a business with barriers. Serial plaintiffs often target small businesses that don’t have the resources to litigate and have little choice but to settle.
Catherine Corfee, a Sacramento attorney who specializes in ADA lawsuits, said the problem isn’t the law itself – it’s the way in which the courts have interpreted the law. The ADA states, “No individual shall be discriminated against based on a disability in the full and equal enjoyment of the goods and services.” Corfee argues the word “enjoyment” means that plaintiffs should have the intent to go enjoy the facility, unlike serial plaintiffs, who appear only interested in profit. However, courts continue to rule in favor of serial plaintiffs.
“The ADA is a great law, it’s just being abused by a few professional plaintiffs (who are) taking advantage of it for money,” Corfee said. “And they’re not taking that money and going out and educating the public.”
Corfee recommends that businesses become CASp certified, a process that identifies barriers to access in the business and helps budget and plan to remove those barriers. CASp certification is a preventive measure that makes it difficult for plaintiffs to file lawsuits.
“Additionally, (CASp certification) is an opportunity to make your business more profitable, because who would want to exclude 56 million people from going into a business?” Schraibman said. “If you can say your business is accessible, you’re opening it up to a whole lot of people.”
Schraibman said there are three common misconceptions about ADA compliance, one of which is “grandfathering,” the idea that a building constructed before 1990 is exempt from ADA regulations.
“(Grandfathering) is as common as the tooth fairy and about as realistic,” he said.
Schraibman added that under the state code, unless a building is new or remodeled, no additional requirements are triggered. However, under the federal code, those additional requirements are triggered. Both federal and state codes are used, and whichever is more stringent takes precedence. Even if the building is not remodeled, the business owner must make it compliant.
The second common misconception, he said, is that the city’s approval of the building means the building is ADA compliant. The city may not identify barriers to access, and a business owner cannot hold the city responsible.