Since the Americans with Disabilities Act became law in 1990, thousands of lawsuits have been filed, claiming violations such as high bathroom mirrors in restaurants and too-narrow aisles in bookstores. The legal action can be crippling to small businesses — and a windfall for the litigants.
“There has been an epidemic of lawsuits alleging ADA violations,” said Supervisor David Chiu, who will introduce legislation today that would help small businesses in The City avoid lawsuits by upgrading their facilities to comply with the act.
“There have been a handful of individuals who have made a living out of suing small businesses,” Chiu added. “It’s a cottage industry.”
Some businesses have closed rather than fight the lawsuits, which can cost up to $40,000.
Chiu’s ordinance would give priority for construction permits that would bring businesses into compliance with the law. Small self-service restaurants would be allowed to exclude space used for disabled access from the calculation of maximum allowable square footage.
If the law passes, beginning in October of next year commercial landlords would be required to bring ground-floor entrances into compliance with the pre-existing law before renting to new tenants or renewing existing leases. Landlords also would be required to tell tenants about potential obligations under the law.
Lawyer Thomas Frankovich, who since 1994 has filed many of the lawsuits that Chiu referred to, said he doubted the ordinance would have an effect.
“The people that he’s concerned about are the remainder of the scofflaws that have ignored this law for 20 years,” Frankovich said. “I have zero sympathy for 99 percent.”
Frankovich pointed to a 2003 report by the San Francisco Collaborative, a coalition of businesses and disability activists that found most business owners did not take advantage of its program to help them upgrade facilities to comply with the law.
“Small businesses appear to reject conceptually sound risk-management principle for the more reactive ‘wait until I am sued’ approach,” the report’s authors
“The hammer of litigation is the only way to improve compliance,” Frankovich said.
Chiu said Frankovich — whose website is illustrated with a drawing of the attorney riding a tank — is using that hammer to his own benefit.
“Thomas Frankovich has been one of the worst examples of these drive-by lawsuits,” Chiu said.
Failing to comply with the Americans with Disabilities Act
can be expensive for businesses.
$4,000: Damages a disabled person is allowed to collect per violation, according to California law
4,809: ADA cases filed against businesses in California since 2005
300: Approximate number of San Francisco businesses sued since 2005
$25,000 to $40,000: Average cost to businesses to settle a case
David Chiu’s office