California Senate Bill 1608 plans to change ADA lawsuit procedures

From The Los Angeles Times. In the picture, Olivia Maxwell eats ice cream at Powell’s Sweet Shoppe in Long Beach. The store’s owners are fighting a $9,000 lawsuit brought by a disabled man.

It didn't take long to figure out why a man in a wheelchair had been snapping photographs of the aisles, counters, shelves and bathrooms inside eateries and watering holes in a fashionable eastern Long Beach enclave.

On June 30, Powell's Sweet Shoppe (pictured); Open Sesame, a Lebanese restaurant; and Panama Joe's Grill & Cantina were served with lawsuits on behalf of Eric Moran alleging that they were in violation of the Americans With Disabilities Act. The violations, each of which could cost a minimum $4,000 in damages, ranged from lacking a restroom grab bar to a restaurant chair out in an aisle.

About a week later, each received an identical letter from Moran's Los Angeles attorneys, Miguel Custodio Jr. and Vineet Dubey, seeking an out-of-court settlement of $9,000. "We have photographic evidence of these violations," the letter said. "We will prevail if this case goes to trial."

Moran has filed at least 27 such lawsuits since June. Hundreds more have been filed by a relatively small number of attorneys throughout California.

Custodio and Dubey declined to discuss individual cases. As for critics, Dubey said, "They can call it fraud or extortion. They can whine and cry. But I'm going to win these cases."

"This is a civil rights issue; we're trying to make the world better for the handicapped," Dubey added. "When you hit a business in the pocketbook, they change their ways."

Critics say the rash of litigation underlines the ineffectiveness of Senate Bill 1608, a 2-year-old state law that was designed to reduce certain inappropriate claims under the disabilities act, while promoting increased compliance with laws providing equal public access in places of business.

"We keep hearing from restaurants and businesses that the litigation problem is still happening regularly, yet the goal of SB 1608 was to eliminate exploitation," Assemblywoman Bonnie Lowenthal (D-Long Beach) said. "If that hasn't happened yet, we need to address the problem with a new law in January."

With that goal in mind, she said, "I plan to bring everyone — business owners, organizations for people with disabilities, Chamber of Commerce officials and attorneys — to the table."

"Clearly, the system is not working," said David Warren Peters, chief executive officer and general counsel of a private law firm in San Diego called Lawyers Against Lawsuit Abuse and an expert on disability laws for a number of statewide associations. "With SB 1608, I believe we were able to stop catastrophic claims," he said. "But more reforms are immediately necessary."

Margaret Johnson, chairwoman of a Commission on Disability Access, created by SB 1608 to determine whether the law was meeting its goals, said, "It is too soon to be talking about replacing it with something new."

"The commission has only just begun listening to issues involving business owners and disabled people," said Johnson, who is disabled and uses a wheelchair. "In 2013, we will make recommendations for new legislation, if needed."

"But I can tell you," she added, "that a grab bar placed a half-inch out of compliance with ADA standards may not seem like a lot to a business owner. But for a disabled person trying to get from a wheelchair onto a toilet seat, it could mean the difference between getting on that seat or on the floor."

SB 1608 allows a business accused of disabilities act violations to obtain a 90-day stay of trial and a pretrial conference with the court to try to resolve the dispute, provided the property had been inspected by a state-certified accessibility specialist before it was served with a lawsuit. It also requires that lawsuits be accompanied by a detailed explanation of the defendant's rights.

The trouble is that many business owners have never heard of SB 1608. In any case, "there are still not enough state certified accessibility specialists available to handle the workload," according to Rex Hime, president and chief executive officer of the California Business Properties Assn.

In the meantime, the owners of Panama Joe's, on the advice of their insurance company, have decided to settle with Moran for $6,500. "It's a license to steal; but it would cost a heck of a lot more to battle this case in court," co-owner Greg Newman said. "The deductible is $5,000. The insurance company will pay $1,500."

Open Sesame, Powell's Sweet Shoppe and several other small businesses in Long Beach, San Pedro and Pasadena plan to take their disputes with Moran to court.

"This lawsuit doesn't make sense," said Judith Smith, co-owner of Powell's Sweet Shoppe, which opened for business on Second Street about two years ago. "In this economy, why would we want to limit access to anyone with cash in their pockets?"

"We have an employee bathroom that is in full compliance with disability access laws, and we carefully designed the place for access by baby strollers and wheelchairs," she added. "We also have a blue handicapped sign at the entrance, which sends this message: If you need assistance, we're here to help."

Store surveillance cameras videotaped Moran as he explored the premises on his wheelchair, methodically photographing aisles and displays from a variety of angles while eating candy his girlfriend had bought at the store.

According to his lawsuit, Moran "suffered physical discomfort, emotional distress, mental distress, mental suffering, mental anguish, which includes, but is not limited to, shame, humiliation, embarrassment, anger, disappointment and worry, expectedly and naturally associated with a person with physical disabilities being denied access…."

The complaint was not accompanied by an explanation of the defendant's rights, as required by SB 1608.

Long Beach attorney Roland R. Salameh, who is representing Powell's Sweet Shoppe, said: "What these guys are doing smells like predatory ambulance chasing, and that is unethical and not allowed by the bar."

"They get some photographs, and then file multiple identical lawsuits within a matter of days," Salameh said. "Clearly, reform of existing laws is essential, because some attorneys and disabled clients are simply using them as tools to make money."