Jerry Doran was more than 500 miles from his
When the restaurant company refused to settle, Doran's
story literally became a federal case. How could he order enchiladas when the
restaurant doesn't serve them, the defense wanted to know. Why did he complain
about a hand dryer that doesn't exist? Did Jerry Doran even go to Del Taco that
day?
The case, which Doran lost last summer, highlights one of
the most emotional and contentious legal battles in
Across the nation, the federal law has been hailed by many
as a civil rights triumph since its passage 16 years ago. But
"Despite the important mission of the
"Simply put," the judge wrote, "this
litigation abuse of the
A six-month investigation by The Bee found troubling cases
across the state that have fueled the controversy:
• A disabled teenager was offered $1,000 by a
• Another disabled man who sued more than 50 businesses in
• Out-of-state lawyers have been lured to
• One Southern California man who issued a string of
letters demanding payment for ADA violations turned out not to be a lawyer, but
a self-described "nutritionist," better known to authorities for his
Internet business arranging body-parts transplants overseas.
• A woman is facing prosecution on insurance fraud charges
after allegedly faking a disability and filing access claims against several
The San Diego-based Lawyers Against Lawsuit Abuse
calculates that at least 14,550
Hundreds more lawsuits have been filed in state courts,
and even some in small claims divisions.
"It's just a big shakedown, and nobody's doing anything
about it," said Brian Crane, a
Many disabled citizens reject that charge, arguing
vehemently that businesses have had more than enough time to comply with the
law. This, they say, involves nothing less than their civil rights.
"If they obeyed the law, there wouldn't be any
lawsuits," said Laura Williams, president of Californians for Disability
Rights, the state's oldest and largest advocacy group for the disabled.
As it turns out, both sides may be right.
The Bee's examination of the 910 ADA lawsuits filed in
2005 in California's four federal court districts illustrates not only how many
businesses have failed to obey the law, but how lucrative those violations have
become for a handful of lawyers and disabled Californians.
Nearly 80 percent of the access suits filed in federal
court last year were handled by just 10 lawyers or law firms. Together they
dominate the
More than a dozen investigations by the California State
Bar, judicial disciplinary committees, state regulatory agencies and county
district attorneys have been launched into the activities of
Like Judge Carney in the Jerry Doran case, some federal
judges have been especially critical of the mass
No business is immune. Last year,
The suits attack a variety of significant flaws: Steps
leading into establishments. Doors too heavy for wheelchair users to open. Pay
phones and counters that are too high. Parking lots without spaces for
specially equipped vans, or no disabled spaces at all. Wheelchair ramps that
are dangerously steep.
In recent years, lawsuits have forced important changes,
literally opening doors for
Other lawsuits are less sweeping, targeting mom-and-pop
businesses -- many of them owned by immigrants with limited knowledge of
English -- who tend to settle quickly, sometimes without being told what needs
to be fixed.
Many business owners swear the disabled plaintiff never
visited the property but simply drove by, a belief that has spawned the
derogatory term "drive-by lawsuits" to describe
Portions of such suits sometimes zero in on violations
that don't directly involve accessibility. They cite the wording on signs or
the color they are painted. Some pinpoint discrepancies between federal and
state standards. A lawsuit against a Dollar Tree store in Sacramento that was
set to go to trial in federal court this month came down to the placement and
wording on two signs. The case was dismissed.
Some
"The backlash is real; this is not imagined,"
said Kim R. Blackseth, a disabled access consultant from
Blackseth, who is quadriplegic and uses a motorized
wheelchair, said hotel staff members frequently tell him that accessible rooms
are unavailable.
Not long ago, while working as a consultant in Los Osos,
near where a litigious plaintiff had recently swept through, Blackseth said he
was physically accosted in a parking lot while he worked with a business owner.
The assailant, seeing Blackseth's clipboard, tape measure and wheelchair,
mistakenly assumed he was working up a lawsuit.
"I don't want the law to go away; we fought hard for
this," Blackseth said. "What I'm afraid of is the negative backlash
created by the people at the fringes. It's going to kill the golden goose for
all of us."
People love to hate lawsuits -- any lawsuits -- but
disability rights advocates contend that filing suit is how the
Signed into law by the first President Bush in 1990, the
landmark legislation ensured disabled people access to public places and
businesses.
Under the federal
"
"What's happening is that a few attorneys are kind of
gaming the system. They see an opportunity to work toward these out-of-court
settlements and are just filing these lawsuits by the handful, and hope
businesses will settle and go away."
At the center of the storm are the handful of lawyers and
plaintiffs dominating
Among the state's 10 busiest
One of the most prolific filers in past years, attorney
Thomas Frankovich of
Frankovich had filed more than 200
U.S. District Court Judge Edward Rafeedie said Molski was
"misusing a noble law" while engaging in a "scheme of systematic
extortion, designed to harass and intimidate business owners into agreeing to
cash settlements." Molski could not be reached for a response.
The
Despite judicial rebukes, no criminal charges have been
filed in such cases. Several attorneys say that is because, while their
representation of disabled clients may be aggressive, it's legal.
"I know this sounds corny, but I'm helping people
that really need help," said Lynn Hubbard
Hubbard said his opponents have "turned me in to the
attorney general, to the district attorney, to the State Bar and to the
Benito says his investigation of Hubbard remains open.
After he launched the probe, he said, one of Hubbard's clients showed up in the
parking lot outside the District Attorney's Office in
The result: Benito's office had to rebuild a wheelchair
ramp, restripe his parking lot and redo a downstairs restroom.
Yolo County District Attorney Dave Henderson said his
office investigated Mathew Lakota of
Lakota, who is not a licensed attorney in
No charges were filed against Lakota in
So efficient are some filers that their suits are largely
boilerplate forms, mass-produced on an attorney's computer with the name of the
targeted business simply inserted in the appropriate spot. As Judge Rafeedie
observed with Molski, his complaints are identical -- "even down to the
typos."
The lawyers say they want to force long overdue access;
some acknowledge they also are in it for the money.
"Lawyers get paid money," said Pinnock, the
Pinnock has become notorious in the
"Our initial demand is $10,500 for each
defendant," Pinnock wrote in a March 22 letter to merchants in Alpine,
east of
Such tactics led to investigations by the
In
"By the Hubbards' own account, '99.8 percent of their
suits settle before going to trial,'" U.S. District Court Judge William B.
Shubb wrote in April. "If the amount of fees awarded in this case is even
close to typical, they would have recovered from defendants more than $12
million in fees over the past four years.
"No wonder that other attorneys over that period of
time may have decided to compete with them for the business."
Hubbard, who has filed more than 1,000
"Are you kidding me?" he said in a recent
interview at a
Like many disabled access attorneys, Hubbard relies on a
handful of disabled clients for the bulk of his practice. He filed 116 federal
suits last year on behalf of just five clients, one of whom sued 35
The same names pop up so frequently on court documents
that even judges remark on it.
Sherie White, a 40-year-old quadriplegic woman from
"You probably remember the signs 'Kilroy was
here?'"
Not all plaintiffs share
Phil Di Prima, a 66-year-old diabetic who began using a
wheelchair after amputation of his lower right leg, spotted an ad for the San
Marcos-based Center for Disability Access in a magazine for the disabled.
Frustrated by the access barriers he had encountered, and getting nowhere with
businesses on his own, he decided to fight back with an attorney.
"I wanted to live as normal a life as possible,"
he said. "I just wanted to fix up my corner of the world."
Between 2001 and 2004, Di Prima was the plaintiff in more
than 50 lawsuits against shop owners in his suburban
Di Prima reportedly made about $50,000 to $60,000 from the
lawsuits. But he said he began to question the motives and tactics of his
attorney, Mark D. Potter of the Center for Disability Access, who also ranked
among the top 10 filers in the state last year.
Becoming a virtual pariah in his own community -- and
still not getting access -- "wasn't worth the money," Di Prima said.
"What the hell does money do? I still couldn't get in."
In court papers filed this year, he accused Potter of
failing to ensure that properties were fixed and of falsely claiming Di Prima
had suffered injuries. Di Prima also alleged that he was not apprised of some
settlement offers.
"The real losers in this arrangement are the disabled
community," he stated in January 2006 court declarations. "Of the 50+
locations
Potter, in turn, sued Di Prima for libel. The attorney did
not return phones calls and an e-mail from The Bee seeking comment.
For business owners being sued for access violations -- or
businesses afraid they might be -- the mantra is the same: We didn't know. We
didn't understand.
Disabled rights advocates are skeptical of such ignorance,
but the laws are indeed contradictory and confusing. And businesses are on
their own to sort it all out, wading through the conflicting state and federal
standards -- or hiring someone who can.
The Department of Fair Employment and Housing protects
Californians from workplace and housing discrimination, for instance, but there
is no comprehensive administrative oversight of the
Cal-OSHA inspectors may visit businesses to investigate
workplace safety and health -- and pinpoint violations -- but no such
government inspectors exist to certify that access laws are met.
The disabled public and their lawyers and consultants are
the de facto inspectors. And the lawsuit is their hammer.
"There's no question that
Blackseth, however, is skeptical of the long-term
effectiveness of incessant litigation.
"I don't think it's proper to be getting up in the
morning and making a business of going out and finding people to sue,"
said Blackseth, who was appointed by the governor this year to the Building
Standards Commission. "I don't think it's the spirit of the law. I don't
think it was the intent of the law."
One of the state's most active
"It shouldn't be that high," he said. "That
makes disabled people look bad." Instead, he said, the minimum should be
reduced to $1,000 to $2,000.
With so much money at stake, it is hardly surprising that
"The word is out," said Greg Hurley, a
Hurley pointed to the American Disability Institute of
Philadelphia. The
Nationwide, the
In some cases, properties have been targets of out-and-out
scams.
Laura Lee Medley, a 35-year-old
Medley became the subject of late-night television
comedians earlier this year after reports surfaced that the supposedly
wheelchair-dependent woman ran from officers trying to arrest her in Las Vegas.
Medley was caught quickly and now faces charges of falsely
claiming she was injured on a
In one bizarre case, J. Cohan & Associates of
Business owners in Eagle Rock, a community in northeastern
Effie Vlahos, owner of Pete's Blue Chip Burgers, called
Cohan immediately and said she was told it would cost her $14,000 to settle.
Vlahos wound up in small claims court in
Vlahos, like many other business owners, had assumed J.
Cohan & Associates was a law firm. In fact, Cohan says he is a
nutritionist, and his Web site identifies Cohan & Associates as Sun
Valley-based "international transplant coordinators" who work with foreign
hospitals able to perform transplants to paying customers (a kidney or pancreas
goes for $140,000, it states).
The
Cohan told The Bee he has never held himself up as a
lawyer but got involved in filing
He has no sympathy for businesses, either, saying,
"Everyone's a bad guy except them." HIS BUSINESS SADDLED BY SUIT
While some insist that business laments are largely
overblown -- that most can afford the fixes and the lawsuits -- Dave Mock tells
a different story.
Mock's saddlery business had run smoothly in
Mock tried to fight but settled after two years in court
and $50,000 in costs, including a $27,000 payment to the plaintiff and his
attorney.
The lawyer who sued him says Mock could have gotten off
for much less if he had simply agreed to fix the violations and pay a
settlement fee.
"I think I offered to settle that case for eight
grand early on," said Jason K. Singleton, a Eureka-based attorney who
files such suits statewide.
Mock ended up folding his business. Today he is a mortgage
lender.
"My total lifestyle is changed from being a cowboy to
a loan officer," said Mock, 61. "I'd rather spend my days on the
range."
Even some disability rights advocates question whether
lawsuits are the best way to get businesses to comply.
"If I thought I could hire an attorney and go out and
sue every small business in town and effectively achieve access, I'd be out
there doing it," said Herb Levine, executive director of the
"I don't think that's good for access. I don't think
it's good for the community's financial climate."
That sentiment isn't shared by everyone, of course --
least of all the most prolific
Hubbard represented Jerry Doran when he sued Del Taco, and
even after losing the case, Hubbard insists the restaurant was in violation.
"Our architect visited the place and itemized all the
problems," he said. "The case is still crying out for somebody to go
sue them."
Despite the judge's conclusion that Doran had not visited
the restaurant before he sued, Hubbard said Doran had a receipt proving he had
been there. Doran couldn't produce that proof, Hubbard said, because his law
office lost it.
But Doran's appetite for dining out -- and for suing -- remains strong. Since 2002, he has used Hubbard to sue Taco Bell, Long John Silver's, HomeTown Buffet, Coco's, McDonald's, Kentucky Fried Chicken, Denny's and Burger King.
MONDAY: The two busiest filers