Wave of disability lawsuits threatens small businesses in Stanislaus County

Ken Hildebrand and Don Lee, owners of the Barnwood Restaurant in Ripon, had to close its doors because they did not have the funds to fight a federal ADA lawsuit.
Ken Hildebrand and Don Lee, owners of the Barnwood Restaurant in Ripon, had to close its doors because they did not have the funds to fight a federal ADA lawsuit.

A rash of discrimination lawsuits against small businesses appears to be spreading south from Sacramento through Stockton, Manteca and Ripon to Stanislaus County’s literal doorstep.

The latest wave swamped Barnwood Restaurant, a familiar Highway 99 sight that closed a few days ago after its owners were sued by a disabled woman claiming that its parking lot and bathrooms weren’t wheelchair-friendly.

The woman has brought 25 such lawsuits in the past two years, a Modesto Bee review found, including 15 this year and five in the past month.

Her Stockton attorney said he has filed about 46 recent cases alleging violations of the Americans With Disabilities Act. None targeted companies in Stanislaus County, he said, but added that he simply responds to clients’ complaints and does not control where they operate.

“I do believe the disabled have a right to equal access and it’s not something people should take lightly,” attorney Daniel Malakauskas said.

Others see mass production of legal challenges as a shakedown, often aimed at small-business owners whose easiest solution may be coughing up a few thousand dollars to make a threat go away.

“This is big money for these people,” said Rick Morin, a Sacramento attorney whose website encourages people to “fight baseless demands.”

Assemblywoman Kristin Olsen, R-Riverbank, noting the southward march of lawsuits, said professional plaintiffs are “on a rampage.”

She is sounding a warning to companies that might find themselves on the wrong end of “get-rich-quick schemes, where they’re literally driving by a storefront and taking pictures. It has nothing to do with a desire for getting things fixed and everything to do with generating income.”

In the Barnwood’s case, nothing got fixed, those suing got nothing and Ripon ended up with one less restaurant.

“We dumped every penny we had into the place and had no money to fight this,” said Don Lee, who took over the eatery with co-owner Ken Hildebrand about a year ago. “We were stuck, so we decided to close the doors.”

Lee said a server last month noticed a woman taking pictures outside, and three days later, he and Hildebrand were served with the lawsuit.

The document identifies Cynthia Hopson as a special education teacher who uses a scooter. The lawsuit found numerous faults with the Barnwood’s parking spaces, handrails, wheelchair ramp, entrance and restroom access.

“She never even tried to come in the building,” Lee said. “They don’t really care whether they’re fixing things for ADA. What they really care about is their little payday.”

Hopson also sued Escalon City Hall last year, saying she and her husband “encountered barriers” that interfered with watching their grandson’s soccer game at a city park. They visited five other city facilities and put problems with all in a federal complaint.

Dozens of media reports over many years have profiled a handful of California attorneys specializing in ADA action, including a 2006 Sacramento Bee review of 10 who had filed thousands of lawsuits. A Carmichael paraplegic attorney named Scott Johnson, for example, routinely settled cases for $4,000 to $6,000, while Chico attorney Lynn Hubbard III typically asked for $40,000, the paper found.

Olsen said one local defendant was asked to pay $78,000.

Malakauskas said he was introduced to ADA representation by another attorney and is not affiliated with Johnson or Hubbard.

A Lawyers Against Lawsuit Abuse website says it’s tempting for companies “to quickly pay an extortionate settlement and get back to business.”

“The intent (of ADA) was sound – making sure disabled members of our community can access businesses and facilities,” Olsen said. “But it’s been so abused that it’s hurting everyone, and the only thing it’s doing is lining the pockets of greedy attorneys and those who would victimize small-business owners.”

Barry Smith, executive director of the Modesto-based Disability Resource Agency for Independent Living, has a unique perspective. Disabled in an accident as a youth, he uses a powered wheelchair when conducting the nonprofit’s business in Stanislaus and San Joaquin counties and the Mother Lode.

“When you can’t access a facility like anybody else, it’s discrimination,” Smith said. Businesses “have had – what? – over 20 years now to be in compliance,” he said, referring to the Americans With Disabilities Act, passed in 1990 and implemented in 1992.

Older companies, such as the Barnwood – built in 1978 with sideboards recycled from area barns to make it look much more aged – do not enjoy grandfather exemptions.

However, Smith bristles at what he calls “drive-by” lawsuits. He prefers gentle encouragement, working with companies needing improvements and offering low-cost compliance surveys meant to save money, not extort it.

“Independent-living centers do not appreciate drive-bys,” Smith said. “It’s not right, it makes the community angry and it’s not good publicity for people with disabilities.”

Brad Wungluck said companies in Manteca, where he is the city’s senior building inspector, have been hit with 35 lawsuits in 11 weeks. He and Olsen urge business owners to consider hiring a state-certified inspector through the Construction-Related Accessibility Standards Compliance Act; proof of consultation can provide some legal protection from nasty legal letters, they said.

But Morin, the Sacramento anti-abuse attorney, said sue-happy lawyers are getting around that by going straight to court, with no attempt to work things out by a letter or phone call.

Malakauskas said he’s not trying to put anyone out of business. “In my experience,” he said, “demand letters don’t work. They just throw them away.”

Wungluck said it’s easy to find ADA problems. He recently stood in a Modesto coffee merchant’s parking lot, looked about and observed eight probable violations, he said; that could represent a $32,000 payoff, he said, because California law permits minimum damages of $4,000 per ADA violation.

Malakauskas said, “Generally, people view this as a shakedown when it doesn’t affect them. How many would be sympathetic to a business owner who said, ‘Well, if I have to get rid of all the cockroaches in my kitchen, I wouldn’t be able to stay in business’?”

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