Things were looking pretty good last month for Tai Pan, a downtown Palo Alto restaurant known for its Cantonese dim sum. State officials lifted COVID-19 restrictions at the start of summer, and business was finally picking up again as friends -- long parted -- were reuniting over good food.
The positive outlook was shattered on July 21, however, when Tai Pan received a lawsuit stating that the restaurant was discriminatory. Its outdoor dining tables, set up for pandemic safety and the preferred option for customers, allegedly lacked enough space for wheelchair access under the Americans with Disabilities Act (ADA).
Tony Han, who runs Tai Pan with his family, said he was shocked to learn that these ADA lawsuits are not only common, but that an extraordinary number of businesses have been hit with similar allegations in just the last two months. The Chinese restaurant Taste, just down the street, got hit with a lawsuit the next week, followed by Singaporean eatery Killiney Kopitiam just days later.
To Han, the stream of lawsuits has soured the feeling of recovering from the pandemic.
"The last year was so difficult and probably the hardest year that everyone has ever worked in this industry," Han said. "So everyone was on this high, and all of the sudden this thing happened."
So far this year, more than 1,400 ADA lawsuits have been filed in Northern California's district court, primarily targeting businesses located in the Bay Area. Of those lawsuits, 686 have been filed by the same plaintiff, Scott Johnson, a man who is quadriplegic and who has sued close to 100 businesses in Palo Alto and Mountain View alone. The list and range of businesses targeted is broad, including national chains like Subway and Chili's, along with small locally owned restaurants like Don Giovanni and Doppio Zero in downtown Mountain View.
Along with restaurants, smaller cafes like Alexander's Patisserie and Maison Alyzée have been hit with lawsuits, and grocery stores, including the Nob Hill on Grant Road, have also been served. Johnson has sued auto repair shops, hair salons, liquor stores and even a welding shop, Praxair Welding Gas and Supply on Old Middlefield Way. A list of Midpeninsula businesses facing lawsuits can be found here.
In most cases, businesses facing ADA lawsuits are doomed to lose in court, and instead seek to correct the violation and pay a settlement that can be as high as $26,000. Despite the cost, many see it as a small price to pay compared to fighting a long, losing battle.
Han said he hasn't decided how to respond to the lawsuit, but he said there's a sense of injustice to the serial litigation. Business owners are angry, he said, because they go out of their way to accommodate people with wheelchairs and other access-related disabilities. Many, including Tai Pan, don't remember someone with a wheelchair and a service dog attempting to eat at their restaurant during the months Johnson allegedly ran into these ADA-related roadblocks.
What restaurant employees at Tai Pan do remember, Han said, is a man coming by the restaurant and casing the outdoor tables with measuring tape right around the time Johnson allegedly visited the restaurant. He believes the lawsuit is simply a way to extract settlement money from businesses that can scarcely afford it right now.
"It is absolutely a shakedown, it's extortion by all means."
Sandy Liu, owner of Taste, said her restaurant experienced something similar. Nobody recalls a man in a wheelchair trying to eat at the restaurant, but they do remember someone carefully observing the outdoor patio from the sidewalk -- something that apparently amounts to a "visit" under the lawsuit. She worries that the alleged ADA violation may have had something to do with the outdoor seating arrangement permitted by the city under COVID-19, and that the city may have some responsibility for the multiple lawsuits.
Liu, like Han, said she still doesn't know exactly how to respond to the lawsuit, but she said businesses can't afford to deal with legal fees and a high-cost settlement.
"We are facing so many challenges to survive since COVID," she said. "Our restaurant business is dropping like crazy."
Though Johnson is an attorney and listed as the plaintiff, the lawsuits are being spearheaded by a San Diego-based law firm called Potter Handy, LLP, which specializes in ADA litigation through an arm of the company called the Center for Disability Access. Dennis Price, an attorney with the center, said in an interview last month that all of the lawsuits are well-founded and based on factual violations, and that Johnson did in fact try to patronize these businesses and found they were noncompliant with the ADA.
Price said defense attorneys will sometimes whip their client into a frenzy about Johnson's motives, but that these cases are a clear-cut effort to improve disability access and implement the 30-year-old federal law as it was intended. Serial litigation from private citizens, despite its bad rap, is the only way to push compliance on a large scale.
"Part of Mr. Johnson's purpose is to vindicate the ADA the way Congress created it," he said. "It relies on private enforcement, and that is what Mr. Johnson has done."
In the vast majority of cases, Price said there is an objective violation that's pretty hard to contest. Grocery store aisles need enough clearance to travel through in a wheelchair, restaurant tables need to meet certain measurement requirements and parking spaces must meet rigid standards that go far beyond painting the pavement blue.
The pandemic has been particularly brutal for those with disabilities, Price said, and people with reduced lung capacity were essentially forced into house arrest. Johnson himself got COVID-19 and nearly died from it, he said, and adjustments made during the pandemic to accommodate outdoor activities and social distancing often created barriers for people with mobility-related issues.
"The world presumes an awful lot of things about people who are going to patronize businesses, and what's important and what's not," Price said. "It's easy to write these things off or call them a technical violation, but sometimes it's the difference between going out and staying home."
On a recent webinar hosted by the Mountain View Chamber of Commerce, real estate lawyer Ken Van Vleck said these lawsuits are not frivolous, and most of the infractions cited are in fact violations of the ADA that need to be addressed. Oftentimes the question is not whether a business is going to lose the case, but how badly and at what cost. Protracted litigation is something plaintiffs' attorneys want, Vleck said, and that can run the cost up to $100,000.
"If your initial reaction is to kick and scream and fight and put up a lot of trouble for them, it's going to cost you more to settle the case," he said. "It is inadvisable, in my opinion, to say this case is a loser but we're going to fight it anyway because we want to make a point and then settle it a year later -- that just doesn't make sense."
It can differ from lease to lease, but it's usually the business tenant that's on the hook for maintaining ADA compliance, though landlords can be sued instead of or along with the tenant. And if the landlord has to make expensive fixes to satisfy the ADA, those costs can be passed down to the tenants.
Even businesses that have closed during the pandemic and have been served with a lawsuit can still be liable for damages, said attorney Martin Orlick.
Many businesses opt to quietly settle with Johnson and make the problem go away as quickly as possible, but Han said the recent avalanche of lawsuits has prompted him to publicly take action. Over the last few weeks he has been connecting with other affected business owners and consulting with five different law firms to find some way to prevent costly litigation on such a massive scale from happening again. He believes the city has a role to play, and could offer to pay for inspections to ensure local businesses comply with the ADA before getting served with lawsuits.
Han said many of the law firms he's talked to specialize in ADA lawsuits and know Potter Handy and Johnson well, but he and other business owners are wary of the advice they're given. They promise a fast settlement in the cheapest way possible, but they also stand to benefit from these court cases.
"Obviously there's a lot of distrust going around. These guys are just playing the same game, they're on the other side of the same coin. But what else are you going to do?" Han said.
Since getting the word out about the lawsuit, Han said there's been an outpouring of support from customers at Tai Pan. One of them, a lawyer from Minnesota, said he also faced an ADA lawsuit and recommended that Han fight back. Others talked about ADA lawsuits like they're a necessary evil and something that's been normalized over time, which he believes is a huge problem. It's not normal to give businesses zero chances to fix these unapparent accessibility problems, he said, and it's something that ought to change.
"The more you make this type of behavior seem normal, the more this is just going to get out of control," Han said, pointing to the hundreds of newly filed cases. "This is literally out of control right now."