ADA – Law Office of Rick Morin, PC

Outdoor Dining Tables are a New ADA Lawsuit Trap

Prolific filers of ADA lawsuits in California are always looking for something new to sue over. From faded parking lot paint, misplaced signs, and doors that require a few percent of extra effort to open, the alleged violations tend be highly technical in nature.

But very recently a new tend has emerged. I am seeing dozens and dozens of ADA lawsuits over one thing: outdoor dining tables. Read on to learn more.

All Public Areas of a Business Must be Accessible

Let’s start with a brief recap. Any area of a business that is open to the public must be accessible to persons with disabilities. This has been the law for many years. Conversely, areas not open to the public are not required to meet ADA standards.

I hear from a lot of business owners that believe that temporary facilities (such as a movable dining table placed outside during the day) are not required to be ADA compliant. That is wrong. If a business offers dining, inside or outside, then a certain number of the dining surfaces must meet ADA standards.

On the other hand, if a business does not offer any dining facilities, then no ADA dining areas need to be provided.

Lastly, keep in mind that even minor ADA violations can turn into a large federal civil rights lawsuit. I often hear from clients that they are frustrated that a “small” violation landed them in court. My response is that these lawsuits are almost always over small, technical violations.

Pandemic Response

Most of my clients are small business owners. During the 2020 pandemic, a lot of my clients that run restaurants did whatever they could to survive, including setting up temporary dining outside. This is because of the various shelter in place orders that have largely precluded indoor dining until very recently.

Understandably, not everyone was worried about finding ADA complaint outdoor dining surfaces. Business owners were doing what they had to do to survive. All the while, predatory ADA lawsuit filers were out trolling local neighborhood businesses and noting which businesses failed to provide ADA complaint dining outside. These professional lawsuit filers then sat on the lawsuits for months because they were sophisticated enough to know that suing a small business in 2020 would not be very profitable. I am now seeing a flood of lawsuits over outdoor dining accommodations.

I have even seen a few lawsuits where business owners opened up large tent dining areas and blocked the accessible parking spaces and are now being sued because they did not provide adequate disabled parking.

As Always, the Best Defense is a Good Offense

I tell everyone that will listen that ADA compliance is not a “set it and forget it” business practice. Ensuring fully accessible business facilities, and avoiding these nuisance lawsuits, is an ongoing obligation. This is especially true when a business makes material changes to its configuration or operations.

I strongly recommend that business owners engage, on a regular basis, with a Certified ADA Access Specialist (known as a CASp in California) to assess ADA compliance. The cost of these inspections is nominal compared to the cost of going through a lawsuit. Because, at the end of the day, businesses that meet the ADA standards stand the best chance of avoiding these nuisance lawsuits.

May 13, 2021/by Attorney Rick Morin

ADA

Scott Johnson Criminal Case Update

Most people know by now that serial ADA lawsuit filer Scott Johnson was indicted by the United States Department of Justice for filing false tax returns back in May of 2019. The criminal case has wound its way through the federal court system for the last two years without any major action. As of today, the case has not gone to court for trial nor has Scott Johnson entered a plea.

Scott Johnson’s criminal trial was previously scheduled to occur in August of 2021. However, Scott Johnson and the prosecutors jointly agreed to push out the trial date to April of 2022. By the time the trial is heard, the indictment will be nearly three years old.

Can Scott Johnson Still File Civil ADA Lawsuits?

Many of my clients ask me whether the federal tax fraud indictment prohibits Scott Johnson from filing additional lawsuits. The answer is no. Despite what people think about Scott Johnson’s activities, everyone in America is innocent until proven guilty. The mere existence of a criminal indictment alone is not enough to prohibit a person from accessing the court system. In fact, by my count, Scott Johnson has filed over 300 ADA lawsuits so far this year.

Believe it or not, even if Scott Johnson is found guilty of the crimes the government alleges, he could still continue to sue small businesses for ADA violations. If convicted, the credibility of his testimony in court could be called into question because the nature of his alleged tax crimes. But again, he could still continue to file lawsuits.

Don’t Forget, Scott Johnson is not the only Person that Files ADA Lawsuits

It is easy to focus on Scott Johnson in the ADA context because of the very large amount of lawsuits he files each year. But I always remind my clients that Scott Johnson is not the only serial filer of ADA lawsuits. There are numerous individuals, some more prolific than others, that file ADA lawsuits against business owners and property owners all over California. Focusing too much on one person ignores the reality of these cases: a business or property owner is a sitting duck for lawsuits if they are not fully complying with the ADA.

As always, I strongly recommend that my clients keep up with the ADA by regularly engaging with a CASp inspector. These inspectors are certified by the State of California to assess businesses and properties for ADA compliance. Making ADA upgrades where necessary, and maintaining consistent ADA business practices, are the best ways to avoid being targeted by an opportunistic lawsuit filer such as Scott Johnson.

April 22, 2021/by Attorney Rick Morin

ADA

ADA Website Lawsuits: A New Frontier in California

By now most business owners in California know that their businesses must comply with the Americans with Disability Act (“ADA”). Most business owners also understand that they can be sued for not following the ADA rules. However, there is a new problem in California. Businesses are being sued because their website are not ADA compliant. Keep reading to learn more about this new problem.

The ADA is a Great Law with Unintended Consequences

The ADA is a very well intentioned law. It was designed to ensure that public places in America are fully accessible to people with disabilities. This is a goal that everyone can agree upon. However, when the law was enacted, our legislators did not want to create a new “ADA police.” Instead, they left enforcement up to private individuals.

This has created a cottage industry of lawyers and professional plaintiffs throughout the country, and especially here in California. These “serial litigants” file thousands of lawsuits every year in California that cost business owners big money. Not all of these lawsuits are bad. Sometimes a business owner refused to provide ADA access and the lawsuit is exactly what is needed to ensure compliance. However, many of the lawsuits that I see are over highly technical violations that did not actually impede real access to the business. We call these “drive-by lawsuits” in the business.

To file a traditional ADA lawsuit, the plaintiff must be disabled, travel to the business, and encounter at least one “barrier” that impacts his or her ability to enjoy the goods or services at that business. These are not very difficult hurdles for a serial litigant to overcome, but at the very least the plaintiff must allege that they visited the business or property. You could only imagine how many miles professional ADA lawsuit filers must rack on their cars driving around to find businesses to sue.

The New Frontier: Suing Websites for Lack of ADA Compliance

Recent legal decisions by higher courts have made it clear that websites associated with brick-and-mortar businesses must comply with ADA. In other words, these websites must be accessible to persons with disabilities to the same extent that the physical business location must be.

Here’s an example: imagine a local restaurant that offers online ordering or even an online menu. We all know that the restaurant itself must be accessible. But the law has evolved here in California such that the online ordering system, or even the online menu, must be accessible.

There are various best practices that website designers and developers can implement to ensure the accessibility of websites. Simple fixes include: offering closed captioning in videos so that deaf persons can enjoy an informative video and making sure that menus are presented in textual, and not image-based, formats so that a screen reader can read the menu to a blind user. In fact, there is now a whole industry of website designers that hold themselves out as being accessibility experts. Their services will likely be in high demand as these lawsuits continue to flood our courts.l

March 14, 2021/by Attorney Rick Morin

ADA

Jose Velez Scores a Win in the 9th Circuit

Jose Velez is a relatively new entrant to the world of frequent ADA litigation in California. A few years back, Jose Velez sued Il Fornaio in the Southern District of California for typical ADA violations. Il Fornaio, to their credit, moved to dismiss Jose Velez’s lawsuit.

The District Court dismissed Jose’s lawsuit against Il Fornaio. The court ruled that Jose Velez did not have standing under the ADA to sue Il Fornaio. The Court specifically cited that Jose Velez did not sufficiently plead that his alleged disability subjected him to the protections under the ADA. Jose Velez appealed.

On June 11, 2020, the Ninth Circuit Court of Appeals handed Jose Velez a victory. The Court of Appeals vacated the order dismissing Jose Velez’s lawsuit and remanded it back to the District Court.

The Court of Appeals Ruled that Jose Velez is Disabled

One primary reason the District Court dismissed Jose Velez’s lawsuit was that he did not allege he was disabled under the ADA.

In his original complaint, Jose Velez complained that he was morbidly obese. The District Court was not impressed with Jose Velez’s alleged disability. However, the Ninth Circuit held that Jose Velez sufficiently alleged that his morbid obesity “substantially limits his ability to walk and stand.”

Under controlling Ninth Circuit authority, these allegations place Jose Velez Under the protections of the ADA.

An impairment is a disability . . . if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population.
Weaving v. City of Hillsboro, 763 F.3d 1106, 1111 (9th Cir. 2014)

Jose Velez’s Lawsuit Against Il Foranio Will Continue

Having ruled that Jose Velez’s alleged disability qualifies him to sue under the ADA, the Ninth Circuit also found that the remaining portions of Jose Velez’s lawsuit was drafted correctly.

The Court of Appeals sent the lawsuit back down to the District Court for further proceedings. In other words, the lawsuit against Il Fornaio will continue.

Here is a link to the decision: https://cdn.ca9.uscourts.gov/datastore/memoranda/2020/06/11/19-55344.pdf

Please contact my office at 916-333-2222 if you are facing a lawsuit by a frequent ADA litigant such as Jose Velez.

July 13, 2020/by Attorney Rick Morin

ADA

Scott Johnson Must Not be in Quarantine

The entire planet is in the midst of a life-threatening pandemic. The economy is in shambles. Courts all over California are barely functioning. Businesses are closed. Families are sheltering in their homes under orders from their government. So are you surprised to hear that Scott Johnson is still filing ADA lawsuits?

You should not be so surprised. Just yesterday Scott Johnson filed two new ADA lawsuits targeting small businesses in the Bay Area.

Aren’t the courts closed? How is Scott Johnson able to do this? Here’s a tidbit of inside lawyer information: the federal courts in California all accept filings electronically. In other words, the physical courthouse does not need to be open in order to file a new lawsuit. An attorney can file a new case at 2 am in the morning from a catamaran in the middle of the ocean. All the attorney needs is a computer and internet connection.

So even though our court system has all-but-shut-down, Scott Johnson and his attorneys are still able to launch lawsuits in the midst of the COVID-19 pandemic. You, as a member of the public, won’t be allowed to set foot inside most federal courthouses right now, but Scott Johnson’s attorneys can file new lawsuits at their leisure.

Last week there were over 30 ADA lawsuits filed by other frequent filers in the Bay Area and Sacramento. There is never a good time to be sued in federal court. But launching opportunistic lawsuits targeting small businesses seems cruel. But that’s just my opinion.

March 25, 2020/by Attorney Rick Morin

ADA

Who is Jose Velez ADA and why is he suing me?

ADA lawsuit abuse is a very big problem in California. As it turns out, there are a handful of professional ADA plaintiffs that file a majority of the lawsuits here. One common name that you see a lot is Jose Velez.

Unlike other common ADA plaintiffs, Jose Velez represents himself. In other words, Jose Velez does not hire an attorney to file his cases. Filing a lawsuit without an attorney is acceptable in almost all courts in California.

Jose Velez alleges that he is disabled. Specifically, Jose Velez claims that he is morbidly obese. He claims that his obesity creates mobility-related limitations.

Most ADA lawsuits are filed against a single business owner and their landlord. This is because the law generally imposes obligations on both the landowner as well as the business owner to comply with ADA rules and regulations. However, Jose Velez often targets 3-4 businesses that are in no way connected with each other in a single lawsuit. In some cases that I have handled, the businesses aren’t even in the same city or town!

Another unusual tactic that Jose Velez uses is that he often sends pre-lawsuit letters to his victims. Most other professional ADA plaintiffs do not send warning letters – they just go straight to court. As far as I can tell, sending a response to Jose Velez’s letters does have an impact on whether a person is sued or not.

As in all ADA lawsuits, I advise that a strong offense is the best defense. In other words, it is always best to avoid being sued in the first place. I strongly recommend that all business owners get regular CASp inspections to ensure that they are up-to-date with ADA compliance. Even small issues can snowball into lawsuits.

If you have been the target of a Jose Velez demand letter or lawsuit, please call my office at 916-333-2222. I represent business owners and landowners all over California who are facing ADA lawsuits.

February 25, 2020/by Attorney Rick Morin

ADA

Brian Whitaker Has Filed Over 100 ADA Lawsuits So Far This Year

Well, it is May 7, 2019, and I feel like it is a great time to check in on another prolific ADA lawsuit filer named Brian Whitaker. By my count, he has filed over 100 ADA lawsuits so far in 2019. That is nearly one lawsuit for each day of the year so far.

Brian Whitaker is represented by a law firm called the Center for Disability Access. They also go by the name Potter Handy LLP. Brian and his attorneys are filing these ADA cases in the United States District Court for the Central District of California. The Central District covers Los Angeles, San Luis Obispo County, Santa Barbara County, Venture County, Orange County, San Bernardino County, and Riverside County. Basically, all of Southern California not including San Diego.

Unfortunately, there are no shortage of businesses to sue in the Central District for ADA violations. This is why I strongly recommend that business owners and landlords be proactive about ADA compliance. A simple site survey performed every year will help businesses comply with the arcane ADA rules and regulations. A good CASp inspector can be difficult to find. Many of the inspectors are booked months out due to the large volume of these ADA lawsuits. Contact my office if you need a referral to a good quality CASp inspector anywhere in California.

Remember, even small violations can result in lawsuits. Incorrect door hardware, missing parking signage, a counter a few inches too high, and faded or missing parking lot lines give people like Brian Whitaker an open door to file a lawsuit. A lot of Brian Whitaker’s lawsuits are filed over very obvious ADA violations. The classic ADA violation is the complete lack of handicap parking. While ADA inspections are not free, they certainly are less expensive than the costs associated with litigation.

The pace of these shakedown lawsuits only seems to be increasing as times goes on. Our political leaders fail and refuse to fix this broken law. The result is endless litigation clogging our federal court system. Don’t be a victim — assess your ADA compliance often to avoid these problems.

Meet Attorney Rick Morin

My name is Rick Morin and I am a tireless advocate for individuals throughout California. Along with my associate attorney Bryce, paralegal Jordann and assistance Alex, my team and I aggressively pursue litigation matters in California Courts.

Everyone in my offices loves helping employees fight back against injustice. We fully utilize California’s strong labor laws to level the playing field. We are very proud of what we are able to achieve.

My small team and I operate out of Sacramento, California just blocks away from the United States Courthouse and the Sacramento Superior Court. But we accept cases state wide, with satellite offices in San Jose in the Los Angeles area. We are always on the lookout for strong cases and clients as dedicated as we are.

I invite you to contact my office at (916) 333-2222 to discuss your ADA lawsuit.

May 7, 2019/by Attorney Rick Morin

ADA

Samuel Love Has Filed Nearly 60 ADA Lawsuits This Year

Today is April 10, 2019 and I feel like it is a great time to check in on prolific ADA lawsuit filer Samuel Love. By my count, he has filed nearly 60 ADA lawsuits so far in 2019. 57 lawsuits to be exact. Said another way, Samuel Love has filed an ADA lawsuit every other day since the start of the new year.

We used to see Samuel Love file most of his lawsuits in Southern California. But right now, he is filing these ADA cases in the United States District Court for the Northern District of California. The Northern District covers the Bay Area, including places like Palo Alto, Menlo Park, Oakland, San Francisco, Walnut Creek, Pinole, etc.

Unfortunately, there are no shortage of businesses to sue in the Northern District for ADA violations. This is why I strongly recommend that business owners and landlords be proactive about ADA compliance. A simple site survey performed every year will help businesses comply with the arcane ADA rules and regulations. A good CASp inspector can be difficult to find. Many of the inspectors are booked months out due to the large volume of these ADA lawsuits. Contact my office if you need a referral to a good quality CASp inspector.

Remember, even small violations can result in lawsuits. Incorrect door hardware, missing parking signage, a counter a few inches too high, and faded or missing parking lot lines give people like Samuel Love an open door to file a lawsuit. While ADA inspections are not free, they certainly are less expensive than the costs associated with litigation.

The pace of these shakedown lawsuits only seems to be increasing as times goes on. Our political leaders fail and refuse to fix this broken law. The result is endless litigation clogging our federal court system. Don’t be a victim — assess your ADA compliance often to avoid these problems.

I represent business owners and landlords throughout California in ADA litigation. Please call my office at 916-333-2222 to discuss an ADA lawsuit or demand letter that you have received.

April 10, 2019/by Attorney Rick Morin

ADA

City of Sacramento Understands ADA Compliance

I recently received my “Business Tax Renewal Notice” from the City of Sacramento. Unlike most other jurisdictions, the City of Sacramento does not issue traditional business permits. Instead, the City levies a Business Tax. I can’t tell the difference. But that’s not the point of this blog!

The City of Sacramento did something new this year. The City included a “Notice to Applicants for Business Licenses and Commercial Building Permits” along with my annual tax bill. The notice is dated December 26, 2018. This is apparently an effort to comply with the provisions of Assembly Bill 3002 that was signed into law in 2018.

The City’s notice is specifically related to ADA compliance! This is a great idea. The notice gives a very primitive overview of the ADA. The notice also tells the applicant that ADA laws impose a “serious and significant responsibility.”

The City’s ADA notice also discusses the existence of the CASp inspection program, tax credits, and provides helpful links to relevant government websites.

I talk to about a dozen California business owners and landlords each week about ADA lawsuits. Most of these people tell me that they did not understand the true scope of the ADA and its requirements. Most of these calls have never heard of CASp inspectors, nor were they aware that non-compliance could result in litigation. A lot of folks are frustrated that their local government officials aren’t doing more to educate businesses about ADA requirements.

I think the City of Sacramento is doing a great service by including this helpful notice along with all tax bills and building permit applications. Hopefully the recipients will take note of the notice. The three minutes it might take a person to read this notice could end up saving them tens of thousands of dollars in legal expenses down the road. But that’s only if prompt action is taken. The best way to avoid ADA litigation is to ensure fully-accessible businesses.

I represent landlords and business owners throughout California that are faced with ADA lawsuits. Please contact my office at (916) 333-2222 to discuss steps that you can take to avoid ADA litigation before it is too late.

February 25, 2019/by Attorney Rick Morin

ADA

Scott Johnson Filed 532 ADA Lawsuits in 2018

Happy New Year! 2019 is going to be a great year, unless you are a small business owner or property owner in Sacramento or the bay area. Why is that? Because Scott Johnson is very likely to sue you in 2019 for ADA violations. The numbers don’t lie.

Scott Johnson is a very prolific filer of ADA lawsuits

As best as I can tell, Scott Johnson filed a total of 532 ADA lawsuits in federal courts throughout California in 2018. That is about 44 cases each and every month. Scott’s first lawsuit was filed January 1, 2018 and his last batch was filed on December 28, 2018. As you can see, the man and his attorneys are very, very frequent users of our court system.

Keep in mind the United States District Court charges a $400 court filing fee for each new lawsuit. That means that Scott Johnson paid around $212,800 in court filing fees alone in 2018. I wonder how the court system feels about Scott Johnson given his largess.

Don’t be an easy target for Scott Johnson or his attorneys

Regrettably, Scott Johnson and his attorneys at the Potter Handy (aka the Center for Disability Access) have no trouble finding new businesses to sue for ADA violations. It it not uncommon for me to discuss these cases with people that have no idea that they are out of compliance until they are targeted by one of these ADA lawsuit.

Don’t be an easy victim. If you are a small business owner or a property owner, one of your 2019 resolutions should be to schedule a CASp inspection. A professional ADA site survey will help identify any accessibility problems — and a good inspector will help you find creative ways to solve these problems. Remember, only full ADA compliance will keep you out of court.

Scott Johnson isn’t the only one filing these ADA cases

Scott Johnson is easy to hold out as a perfect example of our broken disability access laws. This is because he files so many lawsuits year in and year out. However, he is not the only one doing this. An entire cottage industry of professional ADA litigants has developed and there is no end in sight.

Our political leaders in Sacramento will not take meaningful steps to stop these abusive lawsuits. I strongly recommend that people targeted by drive-by ADA filers to contact their State Assmeblyperson and State Senator. Our political leaders need to hear from real people just how troubling ADA lawsuit abuse really is.

Have you been targeted by Scott Johnson, the Center For Disability Access, Potter Handy, or others? Please contact my office at (916) 333-2222 to discuss your options.

January 8, 2019/by Attorney Rick Morin