ADA con artists

[madoka]

My parents once got sued by a similar ADA con artist who sued hundreds of businesses in their city. This con would literally go down the street and sue every business on it one right after the other. My parents were sued because the bathroom soap dispenser was two inches higher than it should have been.

In November, Sameer Misson found out his family's Valero gas station had been sued for violating disability access laws.

Surprised, the 29-year-old East Bay resident quickly made the relatively minor fixes to the handicap parking striping and signage, plus changes to the door pressure, counter height and bathroom sink to comply with the Americans with Disabilities Act. It cost him about $300, and he paid an access specialist to certify that his San Ramon Valley Boulevard service station was up to code.

Misson thought the problem was resolved, so he was shocked when he received a demand for a $25,000 settlement, which would only get higher if he didn't pay it immediately. That's when Misson first learned about Scott Johnson, owner of Disabled Access Prevents Injury Inc. Johnson has filed thousands of ADA lawsuits across Northern California for what experts say is millions of dollars in settlements and attorney fees.

"I don't like getting ripped off at all, whether it's $1 or a thousand dollars ... and that's exactly what's happening here," Misson said. "A lot of people say just make a deal and make it go away. I think it's a legal form of extortion."

Johnson, a Carmichael attorney who is paralyzed from the waist down and uses a wheelchair, has moved his focus from the greater Sacramento area to the East Bay and South Bay. Since October, he has sued 39 businesses in various cities and towns, including San Ramon, San Jose, Campbell, Pacheco and Pleasant Hill.

But Johnson is perhaps getting a taste of his own medicine. He has been named a defendant in a lawsuit filed in Sacramento County Superior Court by four former employees, and recent court filings have pulled back the curtain on his operation for the first time, alleging quotas, bonuses for high settlements and lawsuits filed against businesses that Johnson never visited.

"He's the worst of the worst. It's a total shakedown," said Sacramento attorney Michael Welch, who has represented hundreds of clients sued by Johnson. "These cases are all about attorney fees, not about ADA."

However, the law is largely in Johnson's favor. Each violation, even if it involves a sign affixed to a door an inch too high or low, can carry a $4,000 civil penalty, but more importantly, the loser must pay the other party's legal fees. And the longer the case drags through court, the bigger the bill, so many businesses choose to settle. Five of the Bay Area businesses sued since October have already paid confidential settlements.

'HOLDUP JOB'

For years, Welch has fought Johnson in Sacramento federal court. The lawsuits are all nearly identical in their wording. Welch said he focuses on mom-and-pop shops, and particularly vulnerable businesses.

"A disproportionate number of businesses sued by Scott Johnson are ... owned by immigrants and minorities," Welch said. "The protection racket plays well with immigrant businessmen unfamiliar with the American legal system."

Johnson appears to have worn out his welcome in that region. In Sacramento federal court, judges began holding off processing Johnson's lawsuits, Welch said, requiring parties to meet and confer while disabled access corrections were being made so attorney fees would not accrue. Welch dubbed it the Johnson Rule.

"(Judges) know it's a holdup job. But what can they do?" Welch said. "They have to uphold the law."

The state Legislature has been attempting to tighten the law in recent years with mixed success. Last year, a bill was proposed that would have separated the minor violations from the ones that truly block disability access. The legislation would have encouraged businesses to get an accessibility inspection, including a tax credit for the cost of the inspection, and if issues were flagged, they would have been provided a 120-day window to make corrections. However, Gov. Jerry Brown vetoed it, saying the tax credit would be too costly.

Johnson has since traveled west to take advantage of the federal court in San Francisco, where the judges are not yet familiar with his serial litigation, said Welch, who already has a handful of East Bay clients. Johnson has also switched tactics -- he's now just the plaintiff on behalf of Southern California law firm Potter Handy.

Neither Johnson nor his attorney, Mark Potter, answered calls and emails requesting comment.

In 2012, four former employees of Johnson's company sued him claiming unfair working conditions. Although the women's attorney, Catherine Corfee, declined to comment because of the ongoing case, in declarations filed last month, the women described an ADA lawsuit mill where Johnson would send them out with a map, measuring tape and intake form to find new businesses to sue.

The women said they had to meet a quota of filing between 11 and 16 ADA complaints per pay period to earn a $200 bonus. They received a $100 bonus if a case settled for more than $7,000.

On certain days, the women had to drive with Johnson in his van canvassing areas in search of violators. The women called them "Stuck with Scott Johnson Days."

Refuses to settle

Late last year, Johnson hit businesses on South Bascom Avenue between San Jose and Campbell. He sued Com Tam Thanh, a family-owned Vietnamese restaurant at 905 South Bascom Ave. who decided to settle last month for an undisclosed amount. Just down the street at 870 South Bascom, Chung Wu owns a Subway restaurant. Johnson sued Wu and the building's landlords on March 27, but on Monday that was news to Wu when reached by a reporter.

"I think the law should give small businesses a chance to fix it and give us warning ... before we go to the legal process," Wu said.

As for Misson, he refuses to settle and wants to get the lawsuit thrown out. Even though Misson made the first round of fixes, Johnson has sent an amended complaint with even more violations, many seemingly minor technical ones.

On a recent Friday, Misson showed a reporter around his gas station just off the Crow Canyon exit of Interstate 680. In the bathroom, he pointed to the shield he was forced to add to the bottom of the sink to prevent a burn to the legs of a customer in a wheelchair.

"We don't even get hot water in here," he said, shaking his head.

 

[sandorski]

Wow, classic Ambulance Chaser. On the positive side, many have made the accommodations, but ya a warning of non-compliance should be given before legal action can be taken.

 

[MarkLuvsCS]

That guy is a real piece of work. I understand the laws are complicated, but a warning before excessive fines are reached doesn't seem unreasonable if they quickly fix the non-compliant issue. I mean sure give them a timetable they can't fight but give them 30 days or something to take care of some minor issue.

 

[Genx87]

Shouldn't this be the job of the state to enforce\fine and not individuals? Seems like a simple fix would be to block the ability of people to sue over something like this and give the state the power to fine.

 

[PokerGuy]

A good example of unintended consequences. A good thing that the business are bringing things up to compliance, and you want a way for the law to have teeth otherwise every business will have an incentive to just wait until / if they get in trouble before they fix stuff. The flip side is by giving it such teeth has opened it up for such abuse/extortion. Always a difficult balancing act.

Makes you very angry though to see him extorting people like that......

 

[glenn1]

Wow, classic Ambulance Chaser. On the positive side, many have made the accommodations, but ya a warning of non-compliance should be given before legal action can be taken.

Sounds like it's a deficiency in the state law that doesn't allow a business to have a grace period to fix deficiencies and allows for civil penalties instead of fines for minor offenses. You can't really blame the lawyer for taking advantage of those however even if it is a pretty scummy "line of business" to be in. When there's an environmental niche something will arise to fill it, whether it's a vulture or fly on sh!t in nature or an "ambulance chaser" lawyer in human society.

 

[brycejones]

Shouldn't this be the job of the state to enforce\fine and not individuals? Seems like a simple fix would be to block the ability of people to sue over something like this and give the state the power to fine.

The ability for individuals to file suits was written into the law specifically. I think what needs to be tweaked is that for minor technical issues (which these appear to be) the "damages" should be limited as long as they are addressed quickly.

 

[brycejones]

Sounds like it's a deficiency in the state law that doesn't allow a business to have a grace period to fix deficiencies and allows for civil penalties instead of fines for minor offenses. You can't really blame the lawyer for taking advantage of those however even if it is a pretty scummy "line of business" to be in. When there's an environmental niche something will arise to fill it, whether it's a vulture or fly on sh!t in nature or an "ambulance chaser" lawyer in human society.

Its the ADA at fault here, not state law.

 

[madoka]

Wow, classic Ambulance Chaser. On the positive side, many have made the accommodations, but ya a warning of non-compliance should be given before legal action can be taken.

I agree. However, the congressional bill that would give notification was shot down in 2000.

Around that time, Clint Eastwood was sued over one of his properties:

A woman who uses a wheelchair sued Eastwood in 1997 because doors and restrooms at his Mission Ranch Hotel in Carmel, California were not accessible to people who use wheelchairs. The cost of the work was estimated at $7,000, but Eastwood says he is outraged that the attorney representing the woman asked for $577,000 in attorney fees, a move the actor/director and former mayor calls "a form of extortion".

A bill was introduced and backed by Eastwood, but it never got passed. Presumably for this reason:

The issue of “notification” also remains on the national radar. As you may recall, Clint Eastwood became a prominent spokesman on this issue in the year 2000, when his Mission Ranch hotel and restaurant in Carmel, California, became the subject of an access lawsuit. As was correctly reported, Eastwood ultimately obtained a jury verdict in his favor. But that victory was grounded in the determination that the plaintiff had not actually tried to use the Mission Ranch facilities, and was therefore not herself denied access. Much less publicized was the jury’s determination that the there were indeed numerous barriers in violation of access standards.

Indeed, the existence of access problems had never really been in dispute at Mission Ranch. The case was controversial, rather, because it raised the question of whether it is fair to hold businesses accountable for violations if they have not first been notified of problems by individual patrons with disabilities.

While at first blush this type of warning might seem reasonable, in no other civil rights law is there a requirement to individually inform public accommodations of their legal obligations before pursuing a claim. The ADA is now seventeen years old, and many millions of dollars have been spent to educate businesses of their responsibilities. To introduce an unprecedented requirement of “notification” at this point — or frankly any point — creates a disincentive for compliance, allowing offenders to simply wait until they are caught before initiating needed accessibility modifications.

 

[dullard]

My favorite example of this was on some show like 60 Minutes, many years ago. If I remember correctly, the basic story was this:

A couple who were both wheelchair bound operated a business repairing wheelchairs. So, all employees (both of them) and essentially all customers where disabled. But, they had one two few parking spots marked as disabled. Some guy sued them under the ADA and the costs basically shut down the business.

Yep, putting two handicapped people out of business and preventing handicapped people from having a local business for their needs is exactly what the ADA was intended to do.

 

[interchange]

I am thinking that the intent of the law so that losers pay attorney fees was out of fear that people with disabilities who were wrongfully discriminated against could or would not file suit because they could not afford to do so. Sounds like there would be equal protection in that the plaintiff could be on the hook should they lose. Not sure of the requirements to win a case though. If it is simply proving that the defendant is in violation of the code, then that's easy to do. If you represent yourself, then you could theoretically be awarded $100 in damages and profit from $10000 in legal fees. Seems a bit wrong.

Medical malpractice is not a bad comparison, actually. To win a malpractice suit, you must prove duty (established care), dereliction (failed to meet standard of care), damages, and that the dereliction was the proximate cause of the damages. If applied here, a patron who couldn't reach the soap dispenser would meet duty (shopped at store), dereliction (in violation of code), proximate cause (yep, that's why I couldn't use soap on my hands), but what would the damages be?

Perhaps an easy solution to this would be to cap the legal fees responsible for by the loser to the amount of damages awarded to the winner.

 

[Spungo]

Makes you very angry though to see him extorting people like that......

Not to worry. Most Americans have very strong morals. Eventually, that guy will have an "accident" that stops him from continuing this immoral behavior.

 

[Hugo Drax]

This is why business move to China.

Also as a business owner, you should probably be up to date with all laws/compliance/regulations and make sure they are in shape. Either hire someone to make sure or inform yourself.

 

[thraashman]

Not to worry. Most Americans have very strong morals. Eventually, that guy will have an "accident" that stops him from continuing this immoral behavior.

Well it certainly wouldn't do much to have someone break his legs.

 

[Spungo]

Also as a business owner, you should probably be up to date with all laws/compliance/regulations and make sure they are in shape. Either hire someone to make sure or inform yourself.

This is unrealistic because there's no way an average person is going to know what all of the laws are. A guy opening a store just wants to sell some shit. He doesn't know stupid shit like round door handles being illegal, the hot water temperature must be in a certain range, the door must be a certain width, etc.

I think the problem is with how the laws are enforced. It should be virtually impossible to sue someone for an ADA violation.
Think of it like this. Suppose we live next to each other. I'm being a douchebag, so I'm playing loud music at 1AM and my friends are leaving trash on your lawn. What do you do? Do you contact a lawyer and try to sue me for 23 million dollars? No, you call a police officer to resolve the issue.

Well it certainly wouldn't do much to have someone break his legs.

I was thinking more along the lines of leaving him in the middle of the desert with no water or clothes.

 

[Subyman]

Curious to know how Johnson shows standing to bring the suit. Does he have a pocket disabled person visit the locations?

 

[woolfe9998]

I've litigated a few cases like this here in California. The same plaintiff's lawyer uses the same professional plaintiffs in dozens of lawsuits. The allegations are always the same. For example, in every complaint, this one plaintiff claims he was humiliated because he wet himself due to not being able to get into a rest room.

The biggest problem is that if the plaintiff proves one code violation, he can recover attorneys fees. There's always at least one violation. The lawyer is the greediest one though. The plaintiff will get about $5K out of a settlement, but the lawyer will collect like $100K in fees for doing practically no work. All the documents they create were already created for other cases.

The system needs a serious overhaul.

 

[Brainonska511]

ADA con artists suck. The question comes down to: how best can we enforce ADA standards.

There are a lot of businesses I've seen that would be quite difficult for handicap people to navigate:
-Entry ledges that make it difficult to get a wheel chair over or provide a tripping hazard for those with trouble walking
-Bathrooms in inaccessible places (eg: down a flight of stairs)
-Stairs to enter the business
-Difficult to turn knobs on a sink
etc...

Many of these things seem trivial, but they are quite important to people that are disabled. These things can make a huge difference in the lives of handicapped people.

 

[Genx87]

The ability for individuals to file suits was written into the law specifically. I think what needs to be tweaked is that for minor technical issues (which these appear to be) the "damages" should be limited as long as they are addressed quickly.

I understand it was written into the law. What I am pointing out and asking is why? This sounds like the role of the state to enforce these access codes. Can people go and sue a restaurant that doesnt make every food code for violations under the law and collect cash awards? It seems like a really bad way to enforce codes beyond what this asshat is doing.

 

[OutHouse]

"I think the law should give small businesses a chance to fix it and give us warning ... before we go to the legal process," Wu said.

this is the way it should be done.

 

[Darwin333]

This is completely absurd and should have been fixed long ago. I get it if it's something blatant that truly prohibits a disabled person from using the establishment but a sign being to low or no hot water shield where there is no hot water?

This is just so retardedly easy to fix to. Make two or three classifications of violations, kind of like we do with misdemeanor and felony in criminal law. If it's something like a sign being to low then you get a grace period to fix it and no lawsuit or fine. If it's something worthy of being a "felony" violation then you get fined but the only way you get to sue is if you can show that you were somehow harmed in someway by the violation, which does include being able to reasonably enjoy the establishment. A sign being an higher does not disable you from being able to enjoy the establishment as proof by the need for them to carry tape measures.

We should never allow our legal system to be used for pure and literal extortion and that is exactly what is going on here. If there is no party that is harmed and the only ones who benefit are the lawyers then throw that shit out and let regulators fine the establishment into compliance.

 

[OutHouse]

This is why business move to China.

Also as a business owner, you should probably be up to date with all laws/compliance/regulations and make sure they are in shape. Either hire someone to make sure or inform yourself.

for a small business keeping up to date with the mountain of laws that change all the time is next to impossible. if a violation is found the business owner should be given a chance to fix it before getting sued. case in point, having a handicap sign 1 inch too high and getting fined 4K for non-compliance is draconian bullshit.

 

[Darwin333]

The ability for individuals to file suits was written into the law specifically. I think what needs to be tweaked is that for minor technical issues (which these appear to be) the "damages" should be limited as long as they are addressed quickly.

A simple amendment such as:

"In any lawsuit you must prove that your party was harmed by the non-compliance. If no harm is found then you will owe the defendant all costs and legal fees"

Would put a pretty big stop on this shit. The lawyers literally have nothing to lose and everything to gain. Make those bastards start paying up when judges know that it's frivolous bullshit and you will see a lot less frivolous bullshit.

It should be that way for all lawsuits because they are getting out of hand in general. My company gets sued all the time for the most bullshit of stuff and the reason is that the lawyers know for a fact that our insurance company will settle for $5,000-$10,000 very quickly. The lawyer literally writes a single letter, his client gets a few grand and he gets the rest. It's simply cheaper then fighting it in court even though we know for a fact that we would win. There is no mechanism for recouping the money that we spent to win the case because we can't go after the law firm themselves and their client usually doesn't have a damn thing.

Granted some of the absurdly frivolous ones we will give a big middle finger to the lawyer and tell them see you in court. We generally get one more letter and we write BULLSHIT in big red letters on it and send it back. Most of the time we never hear from them again because these lawyers NEVER actually step foot into a court room. They just write letters and collect checks, hell going to court and winning would still cost them money because of the time they would have to expend for such low figures.

We were working on a building at a high school once. The building was completely shut down and we had two construction barriers around it including a chain link fence. This 17 year old kid jumped both fences and went through our work site after hours because evidently it was a short cut. He stepped on a nail but get this, it didn't puncture his skin at all. It popped some sort of "airbag" in his shoe and he was unable to play in his school basketball game that night "and for sometime after as the family was unable to afford a new pair of shoes". They tried to sue us for $150,000. We made one offer and that was to purchase him exactly one new shoe, not a pair of shoes, but a single shoe to replace the one that his trespassing caused to be damaged. That one went back and forth for a while and even our insurance company wanted to settle for a much lower price at one point but sometimes you gotta stand on principle. We told the assholes that we were very prepared to take it all the way to court if that is what they wanted to do and eventually they went away with nothing. It still cost us quite a bit in lawyers fees though, nothing those bastards do is cheap and that includes simply reading a letter and writing a response.

I know people have all kinds of legitimate reasons to sue and I don't want to tip the scales of people actually harmed being able to sue someone with vastly more resources but damn the system is fucked up right now. Why should it cost me a ton of money because some asshole kid jumped not one but two fucking fences to trespass on my work site after hours and then he, the trespasser, decides to sue ME? I did more than my due diligence and he is the one at fault but I'm the only one doing the paying (even though he didn't see a dime).... System is just fucked.

 

[woolfe9998]

This is completely absurd and should have been fixed long ago. I get it if it's something blatant that truly prohibits a disabled person from using the establishment but a sign being to low or no hot water shield where there is no hot water?

This is just so retardedly easy to fix to. Make two or three classifications of violations, kind of like we do with misdemeanor and felony in criminal law. If it's something like a sign being to low then you get a grace period to fix it and no lawsuit or fine. If it's something worthy of being a "felony" violation then you get fined but the only way you get to sue is if you can show that you were somehow harmed in someway by the violation, which does include being able to reasonably enjoy the establishment. A sign being an higher does not disable you from being able to enjoy the establishment as proof by the need for them to carry tape measures.

We should never allow our legal system to be used for pure and literal extortion and that is exactly what is going on here. If there is no party that is harmed and the only ones who benefit are the lawyers then throw that shit out and let regulators fine the establishment into compliance.

The system needs to be reformed but not this way. The business with one small violation like a too low sign is not the one being sued under the present system. These people look for old businesses run out of old structures. There are tons of regs so almost any old business is going to have several violations, especially if it is a small business where the cost of correction is a lot of money to the owner. And proof of one violation means the plaintiff can recover all attorneys fees, which is a lot more than the value of the case as compensatory damages for the plaintiff.

What they need to do is say the business is given written notice of the violations, either by way of lawsuit or letter, the owner has say 120 days to cure the violations. If cured, the plaintiff cannot recover attorneys fees, only whatever damages they suffered. This may not be all that much for entering the establishment once and claiming to be humiliated, especially after the jury is told that this is the 50th time this plaintiff has claimed he wet himself not being able to get into a restaurant bathroom.

The purpose of the lawsuits should be to encourage compliance, not to enrich greedy lawyers and unscrupulous plaintiffs.

 

[Darwin333]

ADA con artists suck. The question comes down to: how best can we enforce ADA standards.

There are a lot of businesses I've seen that would be quite difficult for handicap people to navigate:

-Bathrooms in inaccessible places (eg: down a flight of stairs)
-Stairs to enter the business

etc...

Many of these things seem trivial, but they are quite important to people that are disabled. These things can make a huge difference in the lives of handicapped people.

I get it and I want to make things as accessible as possible for handicapped people too but what are the solutions to the two problems above? Most places, especially the mom and pop places being targeted, don't even have room for an elevator much less the cost of adding one is simply not affordable at all. So do we make all upstairs and downstairs parts of the building that don't have elevators off limits for public business use? Take a walk in the historic part of New Orleans and tell me that it's a good idea to eliminate at least half of the available business space. Hell the Vieux Carré Commission won't let you modify most historic buildings (which is ALL of them in the French Quarter) unless you have a metric shitton of money to fight them. We are talking north of a million bucks at least to get an elevator and the only way to do that is to completely eliminate the stairs because there is no other place to put it.

The key thing, imho, with the ADA is owners should be required to do everything reasonably possible to make their business accessible to everyone. Eliminating half of their square footage if they don't spend 7 figures and completely change the look and "feel" of a historic building is not reasonable.

So what is your answer?