“As a result of all the legal fees associated with the lawsuit, we had no choice but to close the facility,” says Crystal Chodes, former marketing director for Basketball Town, a special events facility for basketball, volleyball, and other sporting events for children and families.

Basketball Town was forced to close because it could not afford the legal fees required to fight a lawsuit brought by a family member of a guest at a child’s birthday party hosted at the facility.

The facility hosted parties in two areas, one of which was on a mezzanine level.

“He invited one of his friends and that friend brought his uncle, who is in a wheelchair,” says Crystal. “Once we found out through the family that one of the guests expected was in a wheelchair, we actually offered to move the party downstairs and they declined. As a result, months later we were served with a lawsuit.”

Despite the lawsuit, the facility contended that it was, in fact, in compliance with the law regulating handicapped access for its patrons.

But compliance didn’t matter when the cost to defend oneself against a lawsuit overwhelmed the company’s bottom line. Basketball Town was forced to close its doors. The closure also came at a cost to the small business on the premises.

“There was a family pizzeria here and they had invested all of their money into this, they had their family involved in it, and now the facility’s closed,” says Crystal. “They have two kids that they’ve got to put through college. Just a small business, a great family, and they have lost everything – they’re starting over.”

She says: “If it can close an entire facility that’s meant to benefit children and families, it can hurt anyone. And that has to stop.”

Editor’s Note: California Senate Bill 1608 now provides a mandatory mediation alternative to litigation (with certain pre-conditions) to help prevent this exact thing from happening to other businesses.

Link: Faces of Lawsuit Abuse (with video)
Credits: Overlawyered.com

“Mundy is trolling for barriers to his patronage — a threshold too high for his wheelchair, a parking lot with blue-striped access lanes narrower than eight feet, a public restroom where the coat hook on the back of the door, if there is one, is above his reach.

One fighter in a burgeoning army of crusaders for disabled access, Mundy says he has filed more than 150 lawsuits in 18 months demanding damages from small businesses in violation of the exacting requirements of the Americans with Disabilities Act.

Suing for ADA noncompliance has become a cottage industry for dozens of disabled Californians who have taken on the role of freelance enforcers of an often ignored federal statute. They secure piecemeal correction of offending premises and often enrich themselves and their lawyers in the process.

“I don’t go looking for problems. I just notice them as I go around,” said Mundy, who moved to Los Angeles last year from Hawaii. It was in Honolulu that he learned the intricacies of the ADA as a building department employee, a de facto apprenticeship for his new career as a serial litigant.”

(Continue to Los Angeles Times for full article)

Link: Los Angeles Times (article), AOL News (CNN video)

“Jarek Molski, 38, is a bit of a legend in legal circles. Disabled in a 1985 motorcycle accident that left him a paraplegic, he has filed 400 lawsuits against businesses under the Americans with Disabilities Act (ADA), alleging access violations. He was dubbed a “hit-and-run plaintiff” in 2004 by a federal judge and barred from filing any more lawsuits. Molski, of course, appealed to the U.S. Supreme Court, which finally rejected his case on Nov. 17 without comment. Molski must now petition the Central District Court of California and all state courts first before filing any new lawsuits. (See the top 10 underreported stories of 2008.)

“Molski may sound extreme, but he is far from the only plaintiff who has filed hundreds of lawsuits under the ADA in California. A significant number of people who sue under the ADA have legitimate grievances and appear to be motivated by a sincere desire for access rather than monetary gain. However, according to David Warren Peters, CEO and general counsel of Lawyers Against Lawsuit Abuse, a small group of opportunists and select law firms are responsible for a huge percentage of the lawsuits. “I’ve seen plaintiffs that make Jarek Molski look like a Cub Scout,” says Peters, whose San Diego–based firm represents and consults businesses and individuals accused of ADA noncompliance across the state and country. One plaintiff, he says, has filed more than 1,000 ADA accessibility suits alone.”

Link: Time

A common misconception among business owners is that only the landlord is responsible for providing accessibility.  The fact of the matter is, since the store front is the most visible aspect of a business property, most often only the business owner gets slapped with an accessibility lawsuit.  However, anyone who has ever been responsible for any part of a commercial location shares in its liability.  Anyone who has done construction, occupied, sold, leased or managed a business location is potentially liable.  Even the architect is liable for buildings built after 1991.  Landlords are always responsible because most “triple net leases” do not cover renovations; only repairs.  On the other hand, tenants are always responsible for providing access to their occupied portion.

An example might help:  An improperly placed accessible parking space can generate almost thirty violations.  Failure to have any accessible parking at all can be more than forty violations.  At $4000 for each and every violation, just that one issue can bankrupt a small business.  The complexity of the ADA requires an expert to investigate the site. But because all accessible elements are visible to the unaided eye, neither landlord nor tenant is safe.  Responsibility for the ADA is much like asbestos or a leaky roof… waiting only delays the inevitable.

In a worst case scenario, suit will be brought against a business for not being compliant.  Time and money spent on a lawsuit is not recoverable. Defending against accessibility lawsuits is difficult because almost all of the fixes are considered “readily achievable.”  Given that the ADA has been around for almost two decades, judges tend to throw the book at non-complying businesses.

So what is the best thing to do?  The first step is to hire an expert to evaluate your site.  ADA laws change all the time and knowing the liability of a site (before or after you lease, after you’ve made renovations or even if you’re only considering to do renovations) allows you to take corrective measures before things get out of hand.  What was allowed five years ago may no longer be.  At the very least, an ADA expert can tell you what the quickest steps are to limit your liability so you can stay in good shape.

Yours Truly Accessibility Corporation has years of experience providing accessibility inspections and reports.  Got questions about accessibility?  Send an email to help@ytaccess.com or call us at 1-866-982-3212.

“An attorney who has filed nearly 1,500 federal lawsuits in California since 1993 and dozens more in the county since 2004 to enforce the Americans with Disabilities Act has set his sights on South County.

“Attorney Theodore Pinnock has filed lawsuits against more than 60 businesses in National City, Chula Vista and several south San Diego communities, claiming people with disabilities were denied access. The 1991 federal ADA law ensures them access to public places and businesses.

“In San Ysidro, the business owners are fighting back. They’ve hired an attorney to challenge Pinnock’s claims. He has sued a number of stores in an older commercial district and at the Las Americas outlet center.

“On Thursday, Pinnock said he files multiple lawsuits in one area to get other businesses motivated to follow ADA rules. He said the government doesn’t do anything and businesses won’t do it on their own.”

Link: San Diego Union Tribune

“In the past few months, a rash of ADA accessibility lawsuits has descended on neighborhoods across San Francisco from North Beach to Clement Street, from Polk Street to Geary Boulevard, enraging many local merchants and neighborhood advocates.

“Along with XOX Truffles, at least six other businesses on the same block of Columbus Avenue have been served, including Sushi on North Beach, Italian restaurant Da Flora and the sandwich shop Petite Deli. Last week Ricos, a burrito joint on the same the street, received their summons.

“On Polk Street, Teresa Nittolo, owner of the gift store Molte Cose, said that about ten of the neighboring stores along with her own have been sued.

“Many of these suits have been filed by one of a handful of disabled plaintiffs who are represented by Thomas Frankovich, one of the best known and most controversial ADA accessibility lawyers in California.

“Frankovich told me he doesn’t keep count but he guesses that he’s filed between 1,500 and 1,800 ADA accessibility lawsuits since 1994 and he currently has about 50 active ADA suits in San Francisco. Last year, he was the subject of a San Francisco Weekly cover story “Wheelchairs of Fortune,” detailing his multi-million dollar business in ADA suits. In 2006 he was suspended from filing any more cases in U.S. District Court in Los Angeles for six months after a judge ruled him a vexatious litigant.”

Link: San Francisco Chronicle

“”He’s what we like to call a professional plaintiff,” says lawyer Joe Fields, who has represented many of the business owners and views Fox’s activities as more of a shakedown than a humanitarian campaign.

“After six years and 139 lawsuits, Fox isn’t surprised – or dismayed – by such assertions.

“”I have no problem being accused of being a professional whatever,” says Fox, whose childhood polio returned to put him in a wheelchair about 10 years ago. “I do this because I don’t want the disabled people who come after me to go through what I’ve had to go through.”

“The former Riviera Beach city councilman is far from alone. But while most of the thousands of other Americans With Disabilities Act lawsuits filed in federal court in the Southern District of Florida are on behalf of people associated with disabled advocacy groups, Fox flies solo.

“”I don’t like bureaucracy,” he says with a shrug.

“When he visits a car dealership, restaurant, gas station or shopping center that doesn’t have enough handicapped parking spaces or grab bars in the bathrooms, where counters are too high, doors are too narrow or other obstacles to the disabled are found, he gives [his lawyer] a call.”

Link: The Palm Beach Post

“With all the deviants running around these days, you can only imagine what could happen in an Orange County public restroom. David Allen Gunther, a fellow who knows depravity well, said he was traumatized by his Nov. 11, 2003, experience at the Anaheim West Car Wash. Gunther, who is wheelchair-bound, found a bathroom mirror mounted a few inches too high for him to “preen” himself. In a legal complaint, he insisted the experience caused him “anguish, anxiety, humiliation, anger, frustration, distress, embarrassment, apprehension and disgust.” He demanded that the owner of the business pay him $4,000. Would you believe that Gunther has the law on his side?

“Slouched in his custom-made wheelchair at his daily hangout—a Garden Grove Starbucks—Gunther doesn’t look capable of throwing Southern California business owners into a panic. But he has. He’d left his usual head attire, an oily baseball cap, at home and instead had showered, combed his hair and worn a clean shirt for the interview. He’s got large brown eyes, a Johnny Cash face much older than his 43 years and delivers mostly clipped answers in a raspy cigarette voice. He’s wearing shorts today; gruesome scars mark his right leg. Appearances are critical, and on this late September afternoon, Gunther is angry that people don’t see him as a hero.”

Link: Orange County Weekly