Fighting back

After being sued by a well-known Americans with Disabilities Act plaintiff, local businesses are exploring alternatives to simply mounting legal defenses, one by one. And along the way, they have found themselves going head to head with and, at times, unexpectedly aligned with disability rights advocates.

In 2021, Scott Johnson filed lawsuits against Bistro Maxine, a casual French restaurant in downtown Palo Alto, and Tai Pan, a Hong Kong-style Chinese restaurant a few blocks away, as he has done against hundreds of other local businesses.

In those suits, he claimed that the businesses were inaccessible to people with disabilities.

Rather than settling — which would mean paying thousands of dollars in Johnson’s legal fees — Bistro Maxine Co-Owner Stephanie Wansek and Tai Pan Director of Operations Tony Han banded together to form the Bay Area Small Business Coalition as a way to leverage their resources and stand up to Johnson in court.

Today, the group consists of 47 small businesses across San Mateo and Santa Clara counties, the majority of whom were sued by Johnson. Sixteen of the businesses are located in Palo Alto.

Through their work on the coalition, Wansek and Han are also educating fellow small business owners about ADA compliance and advocating for change at the state level.

Pooling resources

Wansek, like many other business owners who face ADA lawsuits, first found out about the case against her restaurant when she started receiving letters from lawyers offering their defense services. They had spotted the Bistro Maxine lawsuit on a website called Public Access to Court Electronic Records. After talking to a few of these lawyers, Wansek sensed that they were more interested in settling the cases quickly than helping businesses fight them.

One letter described the law firm representing Johnson, Potter Handy, LLC, as “vicious.”

“You must act quickly to protect yourself. … The Potter Handy law firm is infamous for having no mercy or guilt,” the letter stated. “Most of the time, a business decision is the best decision, which means spending the least amount of money, including on your lawyer.”

The letter went on to suggest that spending more than $1,000 on a lawyer to fight what they described as an “extortionist lawsuit” would probably be too much for a business. When these cases are settled, though, the amount varies based on the costs of the lawyers on each side and could come to upwards of $15,000, according to one attorney who deals with such cases.

“It takes three or four sentences, and then they scare the daylights out of you,” Wansek said. “It’s so intimidating what they tell you.”

Unsatisfied with the options before them, Wansek and other business owners went looking for an alternative solution.

“We realized that there were many (business owners) that were interested in doing something different, but we just were trying to figure out what that could be,” she said.

The group eventually formed the coalition and hired Phil Stillman, a Florida-based lawyer who agreed to represent the businesses at a reduced rate of roughly $2,500 each.

“The idea was born that all these businesses, if they pooled their resources, could economically defend these cases without just paying (settling) them,” Stillman said.

Stillman has gotten several of their cases dismissed by arguing that Johnson had no intention of returning to the businesses, which a person must have to show standing in a federal ADA lawsuit.

Forty-seven Peninsula small businesses have formed a coalition to fight ADA lawsuits against them.

The real problem of inaccessibility

Potter Handy is a San Diego-based law firm whose Center for Disability Access branch is notorious for bringing thousands of ADA lawsuits in which they pressure defendants to quickly settle. The firm did not respond to requests for comment for this article.

Johnson has refiled some of the dismissed lawsuits in California state court, where the Unruh Civil Rights Act does not require plaintiffs to demonstrate that they intend to visit the business in the future. Under the act, successful plaintiffs are awarded up to $4,000 per violation in statutory damages in addition to attorney’s fees.

“The Unruh Act is what these plaintiffs all rely upon. … (It’s) the financial incentive,” Stillman said. “What I don’t support is using the Unruh Act as a kind of cottage industry where the lawsuits themselves are a business unto themselves.”

Johnson, who is a quadriplegic wheelchair user, has filed over 1,500 ADA lawsuits in the U.S. District Court for the Northern District of California since the beginning of 2020. His disability was originally caused by a car accident in 1981 but was exacerbated in the 1990s when a truck backed over him as he attempted to enter a restaurant with no planned access for people with disabilities, the Sacramento Bee reported. In April, he was sentenced to 18 months of home detention for intentionally underreporting the income he earned from the lawsuits on multiple tax returns and was ordered to stop filing new lawsuits during this time.

Many of the cases against local businesses cite a lack of available ADA compliant outdoor seating. A lawsuit against 1 Oz Coffee in Mountain View describes the conditions Johnson experienced during multiple visits to the store in April and May of 2021, at which point the cafe was not offering indoor seating due to the pandemic.

“There was not enough knee and toe clearance under the outdoor dining surfaces,” the lawsuit states.

1 Oz Coffee owner Yulia Kolchanova said that, in hindsight, her outdoor tables were definitely not compliant. She had only just added outdoor seating to the cafe when the city allowed businesses who had not previously been assigned outdoor seating space to do so.

“There were no special requirements and we didn’t know for how long this would last, so we got the most affordable sets of outdoor furniture,” Kolchanova, who is a coalition member, said.

The lawsuits against Tai Pan and Bistro Maxine state near-identical violations, describing insufficient outdoor dining knee and toe clearance. Several business owners said that they would have willingly brought an ADA compliant table outside had they known it was a requirement. The 2010 ADA Standards for Accessible Design require at least 5% of seating spaces at dining surfaces to be accessible.

Kolchanova and other business owners said that they have no record of Johnson ever having frequented their businesses, some having checked security camera footage from the days the lawsuits claim he visited them.

Statewide change

In addition to fighting their own lawsuits, local business owners are advocating for change at the state level, directly opposing disability rights groups.

Senate Bill 585, introduced by state Sen. Roger Niello in February, would grant businesses a grace period of 120 days to fix any construction-related ADA violations before a lawsuit can proceed. (“Construction-related” refers to any new or existing facilities.) When the bill went before the =7065.41664 Senate Judiciary Committee] on May 2, Han drove to Sacramento to speak in support.

‘If I could tell you how embarrassing and hurt I have been when I try to go to a business in 2023 and get told, essentially, “No, you do not belong and we do not want you.”’

Eric Harris, director of public policy, Disability Rights California

“I’m angry at a law firm (Potter Handy) that preys on immigrants, that preys on hard workers who are just trying to make a living for their families,” Han said before the committee. “And they know that most of us have never dealt with the law before, so with the slightest pressure everyone wants to settle, and the settlement is their business.”

The American Immigration Council estimates that 38% of all business owners in California and 53% of business owners in the San Jose-Sunnyvale-Santa Clara metro area were immigrants in 2018.

Niello argued that giving businesses extended periods of time to fix ADA violations would be more effective at actually improving accessibility than relying on lawsuits to do the bulk of enforcement, given that many lawsuits end in settlements.

“SB 585 would ensure that the deficiencies are actually fixed, access is increased and all can enjoy the business. If they don’t, they’ll be penalized and face damages,” he said.

Settlements do not necessarily ensure that businesses in violation of the ADA fix those violations. If a business promises to fix a violation but does not, the original plaintiff would need to file a new lawsuit, Autumn Elliott, litigation counsel for Disability Rights California, said in an email to the Palo Alto Weekly.

Disability rights groups California Foundation for Independent Living Centers and Disability Rights California opposed the bill, with the latter describing it as “harmful, unnecessary and overly broad.”

“Requiring notice and cure periods treat disabled people as second class citizens by forcing them to jump through additional barriers after being discriminated against,” Eric Harris, director of public policy at Disability Rights California, said before the committee. “In an effort to help a small number of businesses, the vast majority of disabled people who bring credible claims will be harmed.”

Harris, who uses a wheelchair due to nerve damage, shared his own experience as a disabled person attempting to access public spaces.

“I have spent a lifetime finding out which stores or restaurants or businesses are accessible and which ones are not,” he said. “If I could tell you how embarrassing and hurt I have been when I try to go to a business in 2023 and get told, essentially, ‘No, you do not belong and we do not want you’ — we would not accept that with any other marginalized group.”

The committee passed SB 585 unanimously. The bill was then ordered to the assembly where it was referred to the Assembly Judiciary Committee, leaving business owners wondering if the bill is effectively “dead.”

A representative of Niello’s office said that he will continue to work on the bill next year.

“While SB 585 was held in committee, Senator Niello had a productive conversation with the chair of the Assembly Judiciary Committee on the best way to make progress on the issue and is committed to working on it next year,” Niello’s office said.

As the fight for SB 585 comes to a halt for the moment, business owners are concerned about another bill, AB 1757. The bill would increase web accessibility by requiring websites and mobile applications belonging to business establishments — such as the small businesses in the coalition — to abide by new ADA standards and would also allow individuals with disabilities and businesses to sue third party web developers who create non-compliant products. Disability rights groups have come out in support of the bill, while Han described it as “devastating” for small businesses. The bill is scheduled to go before the Senate Judiciary Committee on July 11.

Education is key

Though they might disagree on what kind of legislative change should take place, disability rights advocates and business owners tend to concur that ADA education, especially for small business owners, is vital.

Elliott pointed to a lack of government oversight regarding the ADA that has left small business owners largely uneducated about their own responsibilities. For example, most businesses do not hire Certified Access Specialists to inspect their premises for compliance despite the fact that doing so can reduce a business’ liability if they are later found to be in violation of the ADA, Elliott said.

Meanwhile, the significant burden of enforcement is placed on the shoulders of disabled people themselves.

“Most of the ADA violations out there … continue to go unchallenged,” Elliott said. “We’ve had the ADA for decades now and still there’s so much non-compliance with the law.”

With its Accessible Business Entrance program, San Francisco sets a positive example for what business owner ADA education should look like, Elliott said. The city also offers grants of up to $10,000 to help businesses make changes such as adding accessible furniture, removing mobility barriers and hiring Certified Access Specialists.

Leaders of the small business coalition are working to educate fellow businesses about ADA compliance, and they have hired a Certified Access Specialist to inspect their own businesses at a reduced group rate. Some business owners said that they are more aware of what ADA compliance looks like as a result of fighting the lawsuits and joining the coalition.

“Now I already have an eye for these tables; like now I know how they’re supposed to be tall, how wide and stuff,” Kolchanova said.

In this sense, the business owners are doing exactly what proponents of the ADA want them to: Raising awareness of the law and, as a result, increasing compliance with it.

Other Palo Alto businesses in the coalition include Jing Jing Gourmet, Letter Perfect, Osteria Toscana, Palo Alto Eyes Optometry, Rangoon Ruby Burmese Cuisine, ROOH, Taste, Taverna Restaurant, Wahlburgers and more.

“We met so many great business owners,” Kolchanova said. “I think we got closer to each other.”

Coalition member Rob Fischer, who owns the Palo Alto Creamery and Reposado, echoed what many of his fellow business owners also expressed: that they wanted to serve all customers, and that they do their best to accommodate people with disabilities.

“It’s called hospitality for a reason,” Fischer said. “We bend over backwards to accommodate people.”