Vexacious ADA Litigant? -or- Just Another Skumbag Lawyer?

[dales]

San Jose Falafel's Drive-In faces threat from serial ADA plaintiff

By Scott Herhold, sherhold@bayareanewsgroup.com
Posted: 08/06/2016 08:57:11 AM PDT | Updated: about 4 hours ago

The specialties at Falafel's Drive-In on Stevens Creek Boulevard in San Jose include falafel sandwiches, gyros, salads, pita chips and a banana shake. Nowhere on the menu does the iconic San Jose restaurant offer humble pie.

The 50-year-old eatery is one of the latest victims of serial plaintiff Scott Johnson, who has sued the restaurant over Americans with Disabilities Act violations like countertops that are too high, bathrooms that are tough to navigate, and handicapped parking in the wrong place.

A lot of businesses sued by Johnson wind up paying him attorneys' fees of $5,000 or more. It makes for a handsome income stream for the disabled Carmichael lawyer. But the family that owns Falafel's does not want to settle. They're thinking seriously about fighting.

"I don't want to pay him a penny," says Joanne Boyle, the daughter of the founder of Falafel's, who says that the modifications could ruin the charm of the place. "I don't want to destroy the building. We want to keep it the same.''

The compact eatery looks remarkably the same now as it did in 1966, when Anton and Zahie Nijmeh, Joanne's parents, took over a former Snow-White Drive-In and converted it to a place that made its mark by selling healthy Middle Eastern specialties. (Anton died in 2006.)

My colleague Sal Pizarro has declared its large falafel pita sandwich plus a banana shake ($9.50) "an unbeatable combination." The line that begins forming outside the low-slung place around 11:30 a.m. shows that a lot of people agree with him.

For understandable reasons, Boyle and her sister and three brothers don't want to tinker with that success. They may have a tough legal battle ahead: Older places like Falafel's Drive-In were not built with the Americans with Disabilities Act in mind.

And Johnson has proved a resilient adversary, papering mom-and-pop businesses throughout California with lawsuits that pinpoint the shortcomings of older buildings.

The Carmichael attorney has faced legal action himself. Three months ago, it was reported that IRS and federal prosecutors had launched a criminal investigation to determine whether he paid taxes on his alleged millions in settlements.

This hasn't slowed him down as he has moved his operations to the Bay Area. (Johnson did not return my phone call.)

The owners of Falafel's have looked at whether their eatery could receive protection as a historical asset, which would allow such things as a single unisex bathroom. Alas, the place is not on a list of the city's historical landmarks or in its larger historical inventory.

So the family could end up doing work, though they say they almost never have had problems with disabled customers. I'm just not convinced that they should have to pay Johnson for the privilege.

Johnson has filed thousands of these lawsuits, and most are settled because owners want to avoid making waves. Few places, however, are as famous or beloved as Falafel's Drive-In. Few enjoy the good will.

San Jose Vice Mayor Rose Herrera says she is working to get legal help for the owners of Falafel's. But in the meantime, here's a suggestion: It's time for crowdsourcing. If you think you know what the family should do, send me an email at the address below and I'll see that they get it. Or stop by 2301 Stevens Creek Blvd. Joanne Boyle is there virtually every day.

This has been too great a place for too long a time to throw up its hands at a threat. As TJ Boyle, Joanne's husband, says of Johnson: "If he had a falafel, he wouldn't do this.''

[Bicycle Bill]

If those are the only two choices, put me down as voting for "skumbag lawyer".
Otherwise, I think he is a pus-filled boil on the sphincter of society.

-"BB"-

[Jarlaxle]

He's not the only professional plaintiff...Jarek Molski has done the same thing; he has sued 200+ businesses, and caused several to close, including Roy's Drive In in Salinas, and Chinese restaurant On Lock Sam in Stockton that had been open 105 years.

[Guinevere]

Oh my, these poor maligned businesses, places of public accommodation, who aren't in compliance with federal law. Each and every one of them is making a calculated business decision that the cost of ongoing non-compliance will outweigh the cost of compliance. I'm glad someone is calling them on it.

When was the last time any of you spent a week or more trying to move around someone in a wheelchair? Even with most businesses that comply with the ADA, handicapped accommodations in this country suck, and aren't even close to adequate. Far too many businesses just ignore them, and its infuriating, frustrating, and heartbreaking not to be able to use a facility because the owners don't care. Too many times in the last two years I have had to say to my Mom, sorry, can't take you, there is no ramp/elevator/handicapped access and I don't think you could manage the walk/stairs/etc.

Go get 'em, Scott!

[Jarlaxle]

A local place closed a few years ago...they simply COULD NOT meet ADA requirements in any way short of a new building. (The building dated to about 1850, and making it ADA compliant would have required removing a structural wall.)

Honestly, I hope he dies horribly.

[dales]

Go get 'em, Scott!

And fill your pockets with filthy lucre!

[Bicycle Bill]

Oh my, these poor maligned businesses, places of public accommodation, who aren't in compliance with federal law. Each and every one of them is making a calculated business decision that the cost of ongoing non-compliance will outweigh the cost of compliance. I'm glad someone is calling them on it.

When was the last time any of you spent a week or more trying to move around someone in a wheelchair? Even with most businesses that comply with the ADA, handicapped accommodations in this country suck, and aren't even close to adequate. Far too many businesses just ignore them, and its infuriating, frustrating, and heartbreaking not to be able to use a facility because the owners don't care. Too many times in the last two years I have had to say to my Mom, sorry, can't take you, there is no ramp/elevator/handicapped access and I don't think you could manage the walk/stairs/etc.

Go get 'em, Scott!

Just a thought, Guinevere — have you ever tried to take your mother to see the (interior) of the Statue of Liberty?  Where would you like to place the elevator or ramp to make it possible for someone in a wheelchair to ascend to the crown or the torch?  Or how about visiting a natural attraction like the Carlsbad Caverns, taking a raft trip down the Colorado River, or poking around a Civil War battlefield or climbing the rise to view the site where Custer fell?

I consider this guy to be an agent provocateur who apparently has some legal knowledge and the willingness to make enough trouble to make money off of it.  He's not doing this for the common good or the improvement of society in general.  I see no difference between him and someone who taunts the police in hopes of provoking a reaction so that they can then trump up a claim of "excessive force" or "police brutality" or whatever the current magic phrase is.  In truth, he is no better than Michael Brown's father when he was captured on video in Ferguson MO urging the protestors rioters to "burn this bitch down"; the only difference is that he is not calling for physical violence or criminal activity.

-"BB"-

[Lord Jim]

I agree that this guy is an uber douche...

So for those scoring at home, so far it's:

Lawyers: one vote in favor

Normal people: four votes against

[Jarlaxle]

Oh my, these poor maligned businesses, places of public accommodation, who aren't in compliance with federal law. Each and every one of them is making a calculated business decision that the cost of ongoing non-compliance will outweigh the cost of compliance. I'm glad someone is calling them on it.

When was the last time any of you spent a week or more trying to move around someone in a wheelchair? Even with most businesses that comply with the ADA, handicapped accommodations in this country suck, and aren't even close to adequate. Far too many businesses just ignore them, and its infuriating, frustrating, and heartbreaking not to be able to use a facility because the owners don't care. Too many times in the last two years I have had to say to my Mom, sorry, can't take you, there is no ramp/elevator/handicapped access and I don't think you could manage the walk/stairs/etc.

Go get 'em, Scott!

Just a thought, Guinevere — have you ever tried to take your mother to see the (interior) of the Statue of Liberty?  Where would you like to place the elevator or ramp to make it possible for someone in a wheelchair to ascend to the crown or the torch?  Or how about visiting a natural attraction like the Carlsbad Caverns, taking a raft trip down the Colorado River, or poking around a Civil War battlefield or climbing the rise to view the site where Custer fell?

I consider this guy to be an agent provocateur who apparently has some legal knowledge and the willingness to make enough trouble to make money off of it.  He's not doing this for the common good or the improvement of society in general.  I see no difference between him and someone who taunts the police in hopes of provoking a reaction so that they can then trump up a claim of "excessive force" or "police brutality" or whatever the current magic phrase is.  In truth, he is no better than Michael Brown's father when he was captured on video in Ferguson MO urging the protestors rioters to "burn this bitch down"; the only difference is that he is not calling for physical violence or criminal activity.

-"BB"-

Not to mention...of the top of my head, the Old North Church in Boston isn't accessible. The Constitution certainly isn't, nor are any of the other half dozen museum ships I have been on. (For that matter, I do not think ANY museum ship is.)

(Note to Bill: there has been no public access to the Statue of Liberty's torch since it was damaged in the explosion of Black Tom Island pier in 1916.)

[BoSoxGal]

A local place closed a few years ago...they simply COULD NOT meet ADA requirements in any way short of a new building. (The building dated to about 1850, and making it ADA compliant would have required removing a structural wall.)

Honestly, I hope he dies horribly.

[Jarlaxle]

Your detailed and learned rebuttal leaves me in awe!

[RayThom]

Just getting to the torch appears to be a daunting task even for a fully ambulatory, non-obese, person. And how many healthy people would readily climb this ladder? Now, imagine trying to make it ADA compatible. Good luck to the "ambulance chaser" on that lawsuit. BTW -- I am a bona fide, medically documented, disabled person.

[Jarlaxle]

There has not been public access to the torch in a century.

[rubato]

It is reasonable to require that new construction be built according to codes which require accommodation for the handicapped. And it is reasonable that public buildings be retrofitted where it is financially and archetecturally reasonable to do so.

It is unreasonable and abusive to force establishments constructed legally to codes in force at the time to bear a huge expense and pay ransoms for tapeworms lawyers fees as well as huge payments for retrofitting.


What next? Shooting ranges that have to allow blind people to shoot?


yrs,
rubato

[Burning Petard]

The original item at the top of this thread was about a particular lawyer in Californian who is on a mission to bring small businesses into compliance with the federal ADA regs. This is the same requirement that has led the GOP presidential hopeful to spend millions of dollars to do a special favor for the handicapped.

But the thread here is really about the way these, and other regs intended to protect the public, work for California. There the state intentionally does little to enforce them. Instead the State regulators encourage private parties to seek our violators and take them to court, where the private party can get a big part of the fine, and a small fraction goes to the government.The state happily invites these 'bounty hunters' do the job of regulation enforcement.

snailgate

[dales]

The original item at the top of this thread was about a particular lawyer in Californian <sic> who is on a mission to bring small businesses into compliance with the federal ADA regs.

And forcing many of those businesses into bankruptcy.

And line his own filthy pockets while doing it.

What an amoral skumbag!

[Lord Jim]

It is reasonable to require that new construction be built according to codes which require accommodation for the handicapped. And it is reasonable that public buildings be retrofitted where it is financially and archetecturally reasonable to do so.

It is unreasonable and abusive to force establishments constructed legally to codes in force at the time to bear a huge expense and pay ransoms for tapeworms lawyers fees as well as huge payments for retrofitting.


What next? Shooting ranges that have to allow blind people to shoot?


yrs,
rubato

Okay rube, you just used up your whole quota of commonsense for the month...

Instead the State regulators encourage private parties to seek our violators and take them to court, where the private party can get a big part of the fine, and a small fraction goes to the government.

Which is a fundamentally immoral way for government to operate...

Carrying out a policy that incentivizes blood sucking lowlifes like Johnson to threaten honest, hardworking small business owners with financial ruin...

It's a policy that puts the blessing of the state on serial blackmail and extortion....

[Joe Guy]

Just a thought, Guinevere — have you ever tried to take your mother to see the (interior) of the Statue of Liberty?  Where would you like to place the elevator or ramp to make it possible for someone in a wheelchair to ascend to the crown or the torch?  Or how about visiting a natural attraction like the Carlsbad Caverns, taking a raft trip down the Colorado River, or poking around a Civil War battlefield or climbing the rise to view the site where Custer fell?

Which is exactly what this lawyer is NOT advocating.

I consider this guy to be an agent provocateur who apparently has some legal knowledge and the willingness to make enough trouble to make money off of it.  He's not doing this for the common good or the improvement of society in general.

The lawyer himself is disabled. He has good reason to raise the issue of businesses that don't comply with ADA laws.

I see no difference between him and someone who taunts the police in hopes of provoking a reaction so that they can then trump up a claim of "excessive force" or "police brutality" or whatever the current magic phrase is.  In truth, he is no better than Michael Brown's father when he was captured on video in Ferguson MO urging the protestors rioters to "burn this bitch down"; the only difference is that he is not calling for physical violence or criminal activity.

You see things that aren't there.

[Long Run]

ADA Drive-By Lawsuits — Enforcement or Extortion?

Guest blog post by Bob Vogel

A handful of lawyers and people with disabilities are using well intentioned ADA (The Americans With Disabilities Act) accessibility laws in several states including California and Florida to rake in huge amounts of cash by filing hundreds, and in some cases thousands, of ADA-access lawsuits. In these states it is not uncommon to read about a single person filing more than two dozen ADA-access lawsuits a week, articles often refer to these lawyers as frequent filers.

Why are ADA-access lawsuits so common in California and Florida?

Federal ADA access law says places of public accommodation (businesses) must be accessible and can be sued for access violations (such as steps but no wheelchair ramp or lack of accessible parking spot). The person filing the lawsuit must have a disability that has been affected by the violation. Under federal ADA law the person suing is entitled to recover court costs and lawyer fees and that’s it. However, in an attempt to encourage better accessibility compliance, some states including California and Florida, allow for compensatory damages. For instance, in California a person can sue for at least $4,000 per violation, on top of court and lawyer fees.

The term “drive-by” lawsuits is often used to describe a person that files a great deal of ADA access lawsuits, the idea being that rather than sue a business when they run into an access problem, people filing these cases spend their time driving from town to town, business to business looking for any violation they can find to file a suit.

Armed with a list of businesses and violations from a new area, the lawyer cranks out lawsuits and sends notices to the businesses that they have been sued, usually offering to drop the lawsuit if the business settles by paying between $2,000 and $6,000, in some cases much more. Doing the math, if a lawyer files, say 12 lawsuits a week and settles on $4,000 per case, the money adds up quickly. Businesses claim this is extortion — plain and simple.

Lawyers that file these lawsuits claim they are crusaders for ADA access. The lawsuits may improve access, but at what cost to wheelchair users?

These type of drive-by lawsuits create animosity toward the ADA and leaves business owners with suspicion and mistrust of wheelchair users. I recently drove to a small industrial business park to get a car seat repaired. After I had transferred out of my car into my wheelchair my cell phone rang. As I was talking on the phone, people from surrounding businesses came out and were nervously staring at me. Weird. When I went into the seat-repair business, the owner also seemed nervous until I explained that I wanted a seat fixed— then he seemed relieved. After he fixed my seat, he apologized if he had seemed on edge when I first wheeled in and proceeded to explain that the business park owners had recently been sued because they didn’t have the proper striping and signage on their accessible parking. After consulting with an attorney, they found it was cheaper to pay a demand for something like $18,000 to drop the lawsuit than go to court. They said what really made them mad is nobody recalls the person that sued their businesses ever going to any of their businesses , in fact I was the first wheelchair user they recall seeing in the business park. They also thought it was odd that there was no follow-up to see if they had fixed the parking — which they had. To them, it felt like nothing more than extortion.

In a similar situation, I just heard from a friend that runs a spinal cord injury support group in Pollock Pines — a small, tight-knit community in the California foothills. She said a notorious ADA drive-by attorney had recently papered their town with ADA access lawsuits that ended up costing local businesses a huge sum of money to have dropped. It also forced three small businesses to close permanently. The lawsuits left an atmosphere of alienation toward wheelchair users. The support group has taken it upon themselves to organize a handcycle/bike ride for wheelchair users and non-disabled riders to create an opportunity for positive interaction to try and get back the community and understanding that was there before the lawsuits.

There are non-disabled lawyers that see the dollar signs in this area and recruit people with disabilities to file ADA lawsuits. A website for one such attorney reads “Confined to a wheelchair in California? You may be entitled to $4,000 each time you can’t use something at a business because of your disability.” One of the examples of access violation the site provides is, a mirror in a restroom that is too high to use. If so, the site says, “You may be entitled to $4,0000!” The way the law is currently written, even if a business fixes the violation right away, the person filing the suit has already been harmed by the violation and can still sue and no warning is required.

Another area I find troubling is the way these lawsuits are worded for the court. The wording does as much perceptional damage to the image of wheelchair users as the worst telethon. Wheelchair users are described as “confined to a wheelchair,” and if you are suing because of an access violation — something like not being able to use a bathroom mirror, or lack of proper signage — the court documents describe things such as “Plaintiff [wheelchair user] suffers emotional and/or mental distress because of such discrimination…” Really? Lack of access sucks, but does somebody really suffer emotional and/or mental distress because they can’t use a mirror? While I understand legalese is a different language, but still, according, to these lawsuits, wheelchair users must be extremely emotionally fragile.

A good friend of mine argues that the ADA has been around since 1990 and businesses should know better, and should have changed by now. She also argues that California and Florida have the highest level of accessibility, and perhaps this is because of the compensatory lawsuits, and I agree to a point. The problem with the argument is that when it comes to collecting money on ADA access grounds, everything is technically the same. If a business has stairs and refuses to put in a ramp or refuses to provide accessible parking, I’m all for a lawsuit if that is the only avenue. But let’s say a business has a van accessible parking spot out in front — well-marked crosshatch space for the lift, accessible levers on their doors, fully accessible bathroom, but they forget to put a sign on the bathroom that says it is accessible, or the access sign is the wrong color. The business is still liable for an ADA lawsuit and pursuant shakedown.

What do you think? Are these lawyers doing the dirty work for us? Is the access worth it? Or are these lawsuits doing more harm than good?

https://roho.com/ada-drive-by-lawsuits/

[Jarlaxle]

It's a legalized shakedown and a racket...no more and no less.