Low hanging fruit for disabled plaintiffs: breaking down the structure of an ADA lawsuit - Part 3

Back in May and June of 2015, I wrote a two-part series on ADA activist attorneys and their methods in bringing ADA-lawsuits against small, medium and large businesses.

That was almost two years ago! Guess what? It hasn't got any better. In fact, it has gotten worse.

In 2016, the number of ADA lawsuits rose by 52% nationally and 73% in California over the year before.

Here we are in February of 2017, and the steady stream of ADA-lawsuits shows no sign of slowing down.

Two weeks ago, I received a phone call from one of my clients who owns a chain of family- owned diners located throughout California. He was very upset as he explained that he had just received a “summons in a civil action” on two of his restaurants.

He emailed copies of the lawsuits to me, and I got to work dissecting the list of “alleged violations”.Both restaurants were sued by different plaintiffs with different attorneys representing them. While this is odd, it’s not unheard of. It does make we wonder, however, if these same plaintiffs are already out looking at his other restaurants as we speak.

Here is what the first plaintiff states in their claim:“This is a legal claim for monetary compensation under the Unruh Civil Rights Act, Civil Code 52 and remedial corrective actions. I am disabled and entered your property at 123 Main Street, Anytown, California on 9/14/16. I encountered architectural and accessibility barriers under the ADA 42 USC 12183 (a); 28 CFR 36, appendix A (2007). Anyone who owns, operates, leases or leases to a place of public accommodation are responsible.”

The plaintiff then states that they were “frustrated, annoyed, humiliated and embarrassed.” A violation of ADA law is an automatic violation of California state civil rights laws. A violation of California state law is an automatic violation of federal ADA law. There are over 8 violations that total of $32,000 under the federal and state law.

The 8 violations are all located on the interior of the restaurant and are listed below:

• Failure to provide a window decal sticker with the wheelchair symbol at the entry door.

• Failure to provide compliant Men’s and Women’s accessible restroom signage.

• Failure to provide accessible urinal flush handle that does not require tight grasping/twisting of the wrist and push/pull pounds of pressure to activate the flush handle.

• Failure to provide an accessible lavatory sink at the proper height and water supply line pipes unwrapped.

• Failure to provide a restroom entry door with proper kick plate, door hardware and pounds of push/pull pressure at 5 pounds or less. The ending statement in this suit,

“The Department of Justice fines include $55,000 per violation up to $110,000. Plaintiff may also file for an injunction which means your business doors may be closed” Please respond within 3 days.

Look at this list of alleged violations! All of them are considered “readily achievable” and would cost next to nothing to fix.

The second restaurant received a summons in a civil action by a much more sophisticated attorney who has been bringing these types of suits against businesses for many years.

Here is what the second plaintiff claims in her list of alleged violations:“Plaintiff lives near the facility and visited the facility on or about August 21st, 2016 and again on September 4th, 2016 to dine at the restaurant. During her visits to the restaurant, plaintiff encountered the following barriers (both physical and intangible) that interfered with, if not outright denied, plaintiffs ability to use and enjoy the goods, services, privileges and accommodations offered at the facility.

• The ramp from the designated accessible parking at the entry walkway has an uneven transition at the bottom of the ramp, which created a gap that the plaintiff’s wheelchair got stuck in. The concrete was broken and patched, but the patch was not wide enough for both of her wheels. It was hard for her to wheel over the transition to go up and down the ramp.

• The entry door had a high threshold, which was hard for the plaintiff to wheel over, and the entry door was heavy and difficult for the plaintiff to open. It was hard for the plaintiff to hold the door open while she maneuvered her wheelchair over the high threshold.

• The door to the women’s restroom was also heavy and difficult for plaintiff to open.

• The coat hook inside the women’s restroom was positioned high at the top of the stall door, and plaintiff could not reach it to hang her purse.

• The toilet within the women’s restroom was too low, and the grab bars too high, making it hard for plaintiff to transfer to and from the toilet.

• The plumbing beneath the lavatory in the women’s restroom was not insulated, and plaintiff had to get close to it to reach the soap dispenser and trash receptacle. She was afraid that she would burn her legs on the hot water pipe while washing her hands.

• The trash-can within the toilet stall obstructed the space around the toilet, making it difficult for plaintiff to position her wheelchair to transfer to the toilet.

• There was an open floor drain inside the designated accessible toilet stall in the women’s restroom which created a gap and uneven surface that made it difficult for plaintiff to maneuver her wheelchair within the stall."

They go on to say:“The barriers identified above are only those that plaintiff personally encountered. Plaintiff is presently unaware of other barriers which may in fact exist at the facility and relate to her disabilities. Plaintiff will seek to amend this complaint once such additional barriers are identified as it is plaintiff’s intention to have all barriers which exist that relate to her disabilities removed to afford her full and equal access.”

So what are we really talking about here?

Basic accessibility requirements that have been on the books for over twenty years.

Installing an ISA wheelchair sticker in your window! Wrapping the pipes under the sink and installing a coat hook at 48” on the back of the accessible stall door. Touching up the transition at the curb ramp, fixing a door threshold and adjusting the pounds of pressure on the doors.

My client is about to hand over a year’s worth of profits in attorney’s fees, monetary damages and repairing his facilities because he didn't pay attention to the low-hanging fruit.

How ironic that as I am sitting here writing this article, I received an email from another client that was just served in a lawsuit at his Italian restaurant.

This plaintiff is “sight impaired” or “fully blind” and uses a cane when out in public. I just took a quick glance at the list of alleged violations and this one involves “protruding objects, lack of braille signage and congested interior aisles throughout”.

The fun (if you can call it that) never ends!

If you have any questions regarding your facility and level of compliant access, please contact me directly.