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Provisions in
California’s version of the Americans with Disabilities Act
(ADA) have made the Golden State a gold mine for shakedown
lawsuits. But a few simple fixes would ensure access for persons
with disabilities while halting the litigation epidemic fleecing
California businesses.
Federal and state ADA
laws require businesses to make “reasonable accommodations” for
individuals with disabilities by removing physical barriers that
hinder access.
California’s access
law allows civil-litigation plaintiffs to sue non-compliant
businesses in order to be “made whole” and to recover unlimited
emotional distress and punitive damages. Plaintiffs can also
recover attorney fees. Only Florida and Hawaii have similarly
generous provisions. It is not surprising that in recent years
more than 14,000 accessibility lawsuits have been filed in
California. The state is an ADA litigator’s paradise.
Exhibit A is Theodore
Pinnock, a disabled lawyer in San Diego. Pinnock & Wakefield,
his law firm, has filed more than 2,000 ADA lawsuits against
California businesses, touting a 95-percent settlement rate. In
March, he demanded $10,500 from each of 40 businesses in Alpine,
California, or he would sue alleging ADA violations. The
incident surprised many local storeowners, who believed they
were in compliance.
In January, Pinnock
finished filing four class-action lawsuits against dozens of
businesses in Julian, California. The suits stemmed from
Pinnock’s visit to the historic Gold Rush town two months
earlier. Pinnock claims his weekend was spoiled by the
noncompliance of a number of small businesses.
Days after
Pinnock returned home from vacation, 67 Julian mom-and-pop
stores received letters demanding varying amounts of money in
compensation—the
smallest being $2,500—and
ordering physical changes to the business establishments. If his
demands were not met, Pinnock threatened to sue under state law,
making them potentially liable for $125,000 in attorney fees,
payable to Pinnock of course.
Because Pinnock is
disabled, he often files ADA lawsuits on his own behalf or under
one of his unincorporated associations. According to an insider,
Pinnock admits to being the only disabled member of one
association, with the remainder being family members. Pinnock
says the money he demands is for his legal work. If Pinnock’s
money demands are not met, he sues.
A few Julian
storeowners negotiated settlements with Pinnock in exchange for
temporary lawsuit immunity. Pinnock has given some of these
businesses three years to fix access issues, confirming that
money, not quick compliance, drives his lawsuits. So far, two of
the four lawsuits have been settled.
Many businesses have
refused to settle, fearing that if they settle, they will become
easy targets and be sued again, though all favor making
reasonable accommodations to comply with access laws. Some
owners have offered to use their money to make access changes
instead of settlement payments, but Pinnock has refused, again
confirming that money is his motivation.
The longer a business
delays settling, the higher Pinnock raises the settlement
amount, ultimately suing the holdouts. Four businesses,
including Bell, Book and Candle, a Julian specialty shop, have
closed their doors citing Pinnock as the last straw.
Though distasteful,
Pinnock’s actions are legal. His siege of businesses in Julian
and Alpine illustrates how legal extortion thrives in the Golden
State. Flaws in state ADA laws make it easy for professional
shakedown artists to file suits, line their pockets, and shutter
businesses.
Pinnock is determined
to continue this practice. After local media began reporting on
the Julian siege, Pinnock issued a warning on his firm’s
website: “I am putting businesses on notice today to hire an ADA
consultant, do a survey, take out a loan, and remove all
barriers immediately. The ADA plaintiffs will increase lawsuits
immediately. . . . I have no more compassion for businesses and
respect for certain news reporters.”
ADA shakedowns are
out of control in California. But a few simple reforms would fix
the problem: Businesses should be notified of a violation and
allowed to remove access barriers within a short time before an
ADA lawsuit is filed. At trial, access improvements should be in
lieu of damage awards. Finally, punitive damages should not be
allowed and the losing party should pay both sides’ attorney
fees.
The goal of the ADA
is access for persons with disabilities, not making lawyers rich
and bankrupting storeowners. A few reasonable accommodations to
this well-intentioned but flawed state law would encourage
speedy compliance while stopping shakedowns of California
businesses. |
