June 19, 2015

Americans with Disabilities Act has been abused

By SAL RODRIGUEZ | The Press-Enterprise

Abusing well-intended laws for financial gain has become a pastime in states like California.

When President George H. W. Bush signed the Americans with Disabilities Act into law in 1990, the intent was to enhance the quality of life for persons with disabilities by prohibiting discrimination.

Removing barriers to employment and public accommodations are the cornerstone of the law. State governments primarily are responsible for seeing that the goal of expanded accommodations is realized and provide different legal remedies to violations.

California building codes and business regulations are designed to ensure compliance with the federal law. Businesses can use only certain types of door knobs, parking spaces must be within precise dimensions and signage rules must be obeyed.

At the time the ADA was enacted, California already had its own anti-discrimination law, the Unruh Civil Rights Act, which prohibits discrimination on the basis of categories like age, sex and disability. Plaintiffs filing suit under the Unruh Act are entitled to no less than $4,000 in damages.

The state effectively has paired the ADA with the Unruh Act, so that violations of the ADA are subject to the remedies provided through the pre-existing state law.

In practice, this has incentivized wave after wave of lawsuits filed or threatened against business and property owners across the state. No matter how small the violation, be it improper bathroom dimensions or signage, the $4,000 minimum damages are state law.

Between 2005 and 2014, over 7,000 ADA lawsuits were filed across the state – most by serial filers who sued at least 30 times.

One of the more infamous offenders in the past decade was Theodore Pinnock, a disabled San Diego lawyer who filed at least 1,000 ADA lawsuits.

Pinnock came to national attention after demanding varying sums of money from small business owners in the historic town of Julian, California. If business owners did not send the money, Pinnock threatened costly lawsuits for noncompliance with the ADA. Many businesses complied, while others were taken to court.

Pinnock later would be disbarred for unrelated reasons, but shakedowns of businesses in that style persist throughout California.

State legislators have been slow to protect business owners from lawsuit abuses. In 2012, the state prohibited letters demanding money in exchange for not filing a lawsuit. Litigators simply adjusted by skipping the letters and just filing lawsuits.

In Riverside County, businesses have been forced to shell out thousands of dollars, or even close entirely, due to ADA lawsuits. Kuma Tire & Wheel in the city of Riverside paid $8,000 to settle a lawsuit for not having a marked handicapped parking spot. Pablo and Maria Mercado in Woodcrest were forced to shut down their fruit stand because they could not afford to bring their restroom into compliance after being hit with a lawsuit.

In the past year, dozens of business and property owners in the county reported receiving letters and visits from Rodolfo de Hoyos, including the Greater Riverside Chambers of Commerce.

Mr. de Hoyos presented himself as an advocate for people with disabilities and an owner of ADA Advocates and Consulting. He was arrested April 30 on felony charges, including extortion, grand theft and money laundering.

In the week prior to his arrest, I spoke with de Hoyos and asked about his activities.

Claiming he only approached businesses with violations like “door knobs not being a lever door knob” or inadequate “van parking accessibility,” de Hoyos explained he simply was trying to bring businesses into compliance with the ADA.

“I didn’t write the law, I’m just enforcing the law,” he said. “They passed these laws for a reason.”

Well-schooled in the rationale of those who file purportedly legitimate ADA lawsuits, de Hoyos explained, “An ADA violation is a violation of the civil rights law.”

According to police, he took at least $150,000 from at least 80 businesses after demanding payment of up to $10,000 in each case.

While it is fortunate that such activity has stopped, the gap between what de Hoyos was doing versus what many others have been doing throughout the state isn’t too far off.

Any solution to lawsuit abuses must include a combination of improved education efforts to inform business owners of their rights and responsibilities, while giving them a chance to resolve ADA violations without stiff penalties. Senate Bill 251, by state Sen. Richard Roth, D-Riverside, exempts small business owners from liability if their businesses have been inspected by a certified access specialist and any violations have been corrected within 90 days. It recently passed the Senate and is being considered in the Assembly.

At this point, SB251 is the closest we are going to get to mitigating ADA lawsuit abuse.


get updates