Small local business owners fight ADA lawsuits
A group of small business owners from the Mission held a press conference on Thursday, September 9, to address what they consider to be predatory lawsuits filed by an attorney and his client that abuse the American Disabilities Act.
The 4 o’ clock sun kept the corner of 24th and Mission warm but local merchants’ emotions ran hot. They said San Francisco-based litigator Thomas Frankovich and his disabled client Craig Yates, who sue for ADA compliance violations, are victimizing them.
Paula Tejeda, owner of Chile Lindo, organized the press conference along with other merchants.
She closed her take-out shop for short while last August after Yates filed a complaint for an ADA compliance violation. After much local media coverage, she reopened but no longer lets customers inside.
“These are serial lawsuits that are bringing serious hardships to these businesses. The hardships that the small businesses are now facing is bringing us together so that somehow we can face this as a community,” she said.
Yates, a paraplegic who uses a wheelchair, has filed nearly 70 lawsuits since the beginning of last year, targeting small businesses all over the City, including many in the Mission.
The owners from Elsy’s Pupuseria, Cafe Gratitude, Red Cafe and the landlords from Pete’s BBQ attended the press conference in front of the Bart station. They told some of their experiences and concerns for what is happening.
The ADA was enacted in 1990 by the federal government to ensure the civil rights of Americans with disabilities. Title III of the ADA requires that people with disabilities have access to the same goods and services as the rest of general public.
It also requires that accessibility be “readily achievable”—that is making improvements without taking on excessive expenses that could harm the business. Determining what is “readily achievable” when being sued, however, can only be determined in court or a settlement hearing—which can be costly.
Regina Dick-Endrizzi, the executive director for San Francisco’s Office of Small Business, was also present at the conference and said there are ways for business owners to protect themselves. Her office is trying to reach out and educate them.
Dick-Endrizzi said one of Frankovich tactics is to cite compliance violations based on new building code standards that may not even apply to older buildings.
“But you aren’t going to know that unless you have a lawyer,” she said.
This is what happened to Jaime Gonzalez, the owner of Elsy’s Pupuseria. He and his wife have already spent $7,000 in attorney fees after Yates cited them for compliance violation. Gonzalez said the building codes that Yates cited do not apply to his business, though they are still negotiating.
Gonzalez’s said his wife was fearful about him speaking at the press conference. She didn’t want him to attend but he wanted to speak out anyway.
“We work very hard for our family and someone is going to come and ask for $23,000 for no reason?”
While everyone agrees with ADA law and it’s intended purpose. Small business owners think it’s being abused at their expense. Frankovich’s objective, they said, is money, not access for the disabled.
“The Americans with Disabilities Act exists for a real reason and it’s important,” said Henri Norris, who is part owner of Cafe Gratitude, “and there is always a balancing act that has to be in place. My sense of what they are doing is just trying to rack up some dollars.”
Alice and Andy Giovannini, landlords for Pete’s BBQ, said they corrected compliance violations within three weeks after Yates made them aware. But despite the corrections, Yates still wants $30,000.
The ADA only requires the plaintiff be entitled to have compliance violations remedied plus attorney’s fees. But in California, under the Unruh Act, a plaintiff can also make a claim for at least $4,000 dollars per violation—which can quickly add up.
Dick-Endrizzi said this act is unique to California and unintentionally empowers Frankovich—a former personal injury attorney—with the means to successful and lucrative litigation. But it also leaves small businesses vulnerable.
In 2005, a U.S. district court judge with jurisdiction in Southern and Central California prohibited Frankovich from representing clients without the judge’s permission. Frankovich filed similar, if not identical, lawsuits, in that district while representing a client who performed the same role as Yates. That client was also barred from filing any more lawsuits.
She said Yates would usually show up to a business and start noting compliance violations. He will then send a letter to the owners and if the violations are not fixed, the owners, the landlord or both will be sued with Frankovich as his attorney.
In Cafe Gratitude’s case, Norris—who also happens to be an attorney—said they never received any letter. The only thing they received was a lawsuit from Frankovich stating they had 30 days to respond.
“We are going to fight it,” she said, “because it is the right thing to do.”
Frankovich, in a phone interview, said he had no sympathy for those being sued and that the Mission district is not “special” in being unfairly targeted. The targets, he said, are the disabled who are most vulnerable. He considers landlords and owners who don’t make their tenants businesses compliant to be “scofflaws.”
He said that suits are mostly filed against the landlords—not the businesses themselves—and added that many landlords have owned their properties for 20 years but have done nothing to provide access.
“What have they done with 20 years of rent?” he said. “They say, ‘Oh we can’t afford it.’ That’s B.S. Something is wrong.”
Frankovich also defended his client Yates’ rights. He said the law provides that a disabled person can hire a private attorney to enforce the law.
“He spends his goods and services and has spoken to many of them [owners]. What recourse does he have? He [Yates] sends off 2,4,6 letters and they have done nothing,” he said. “They deserve to be sued.”
Dick-Endrizzi also said it’s important that if a business receives a letter from a customer claiming access difficulty, that they send a reply as soon as possible and not disregard it.
Frankovich, despite his hard-line stance, said he would voluntarily speak to small business owners in the Mission in a forum should one be offered. He said he would address compliance requirements and how to avoid lawsuits.
Tejeda ended the press conference by saying that immediate mission is to get the message out about what is happening to these small businesses and getting the district supervisors to “highlight” these businesses to get the community to support them by spending their money there. She said both financial and emotional support is important.
Becoming emotional herself, Tejeda said, “Business owners need to know that they are not alone. They need to know that people care what’s going on because it’s horrific.”
She also lashed out at “unethical lawyers” who purport to defend the community as “community pimps”. But despite her anger and frustration Tejeda said she wants to stay on target.
“We want to focus on helping the business get through this. More than fighting Frankovich and all the like, we want focus and staying positive and giving support to the small businesses. I think this where we want to put our energy.”