Disabled parking spot with peeling paint — should lawyers be allowed to sue for a Disabilities Act violation?
The toilets inside the restrooms at the Sunshine Car Wash on Mission Gorge Road are too low to the ground.
Midas on Mission Gorge
At Midas Auto Repair Center in Mission Valley, the blue paint on the disabled parking spaces is faded.
Cardboard placards listing the daily lunch and dinner specials block the wheelchair-accessible portion of a counter at Ashoka Restaurant in Mira Mesa.
The dirt paths at San Diego’s Gliderport are bumpy and dangerous for wheelchairs.
Carmax in Kearny Mesa
None of the new and used cars at auto dealerships Witt Lincoln in Mission Valley and Carmax in Kearny Mesa have hand controls on vehicles.
These alleged violations of the Americans with Disabilities Act feature in lawsuits filed by attorney Mark Potter, founder of the Center for Disability Access in San Diego, on behalf of his client Scott Schutza.
Potter is one of a handful of attorneys in California who specialize in suing businesses over Americans with Disabilities Act violations. Since opening in 1996, the Center for Disability Access has filed more than 2000 complaints against California businesses. The firm was once said to have filed the fourth highest number of disability lawsuits in the state.
Potter’s numerous lawsuits in San Jose prompted a councilmember to host a free forum in January 2014 to help business owners learn more about the Americans with Disabilities Act and to craft a defense in case of lawsuits.
Alleged serial filing of Americans with Disability Act lawsuits has long been an issue in California. Since 2005, according to a report by a Bay Area NBC station, more federal disability lawsuits were filed in California than New York, Texas, Florida, and Pennsylvania combined.
Attorneys say the law needs to be changed in order for reform to occur. That means giving more responsibility to local governments to ensure compliance instead of allowing private citizens to enforce the law through lawsuits.
Some attempts at reform have been made. In September 2012, governor Jerry Brown signed legislation intended to curb the number of frivolous disability lawsuits. The bill requires that business owners be notified of any infractions 30 days prior to filing a lawsuit. It also lowered the dollar amount on penalties from $4000 to $1000 per violation. The bill, as seen in the number of cases, has had little impact.
Instead, a small number of California attorneys continue to file the majority of federal lawsuits on behalf of a few individuals.
San Diego County resident Scott Schutza, a paraplegic, is one of them.
Since 2011, Schutza has filed 100 ADA lawsuits in state and federal court — 80 in 2014 — against local businesses.
Schutza is what some attorneys call a “serial filer,” or as one attorney for Regal Cinemas recently described him in a declaration, “a professional pawn and serial litigant.”
Another so-called serial filer in San Diego is Mark Wiedenfeld. Potter’s firm has filed 11 federal disability lawsuits in the past year for Wiedenfeld, most of which are against gas stations over the placement of the credit-card readers on the fuel dispensers.
But opposing attorneys and their clients are now refusing to settle the cases. Instead, many firms are fighting back, asking that sanctions be imposed on attorneys such as Potter in order to reduce the number of complaints.
Robert Ball represents Witt Lincoln. Schutza is suing the dealership for not equipping their cars with hand controls. Ball says that while most attorneys and businesses agree to settle the cases up front to avoid legal bills, he advises his clients not to do so.
“There are lawyers across the state who specialize in filing these cases,” Ball said in a December 4 phone interview. “But we don’t settle these types of cases and are very aggressive in the way we defend them. We will not only be filing a motion to dismiss but we will also be asking that sanctions be imposed on opposing counsel.”
Ball says defending Disabilities Act lawsuits is tricky in that equal access is important and no person should be turned away or denied service because of a disability.
“What the courts are wrestling with is that, on one hand, these are serious cases because there should be no barriers for anyone. No good lawyer — no good person, for that matter — should want otherwise. That being said, if a case has no merit, then as attorneys we have every right to seek appropriate sanctions. That is precisely what we plan to do in this case.”
Other attorneys, however, say state and federal legislators are allowing attorneys such as Potter to conduct their own “private enforcement.”
“We’ve seen too many businesses close, quite needlessly, because of [Center for Disability Access’s] litigation,” San Diego attorney David Peters writes in an email. “[Potter and his attorneys] will say private enforcement is part of California law but abandoning claims and ignoring changes which might be necessary at the properties as long as a suitable financial settlement is received, undermines any claim that this litigation is based on accessibility, and not the financial settlements California law makes so easy to get.”
Peters has long battled Potter and the Center for Disability Access. During the past decade, Peters has represented several business owners as well as Potter’s former client, Phil DiPrima, who once accused Potter of filing false declarations, exaggerating the scope of complaints, and negotiating settlements without his knowledge.
“Although I did authorize [Center for Disability Access] to file a number of access lawsuits on my behalf, I did not authorize any individual [at Center for Disability Access] or anyone else for that matter, to claim that I had experienced access impediments at a particular property which I did not actually personally experience, or which did not actually deter me or impede my path of travel,” reads a 2004 court declaration given by DiPrima.
“For example, the lack of disabled parking has never been an access impediment for me because I do not drive. I have recently learned that in most, if not all, of the lawsuits filed in my name, it was claimed that I had encountered a lack of properly configured disabled parking.… [I]f defendants with limited resources are required to defend claims which really do not apply, they may be left with less money to put toward access renovations which were the real goal of my lawsuits.”
Attorney Peters says more needs to be done to prevent small businesses from being targeted by Potter and others and to ensure no person is punished or left out because of mobility issues.
“People with disabilities should be outraged that they still can’t get in to properties, because law firms like [Center for Disability Access] took a quick settlement with no meaningful commitment to make changes. Imagine if California’s arrangements for earthquake safety, food safety, or fire safety depended solely on the efforts of a small number of opportunists, in other words, if you get hurt, you can sue, and that alone will be sufficient to make us all safe. As ridiculous as it sounds, that appears to be Sacramento’s preference for how change will be brought about in this state.”
Repeated emails and calls to Potter were not returned. Requests to interview Scott Schutza were also denied.