In secret, behind locked gates, our Nation's Oldest City dumped a landfill in a lake (Old City Reservoir), while emitting sewage in our rivers and salt marsh. Organized citizens exposed and defeated pollution, racism and cronyism. We elected a new Mayor. We're transforming our City -- advanced citizenship. Ask questions. Make disclosures. Demand answers. Be involved. Expect democracy. Report and expose corruption. Smile! Help enact a St. Augustine National Park and Seashore. We shall overcome!
Wednesday, July 21, 2021
The Man Who Filed More Than 180 Disability Lawsuits: Is it profiteering — or justice? (NY Times Magazine)
The author of this article, identified as a "fiction writer," needs to learn more about logic, research and law. As my late libertarian friend Rick Sincere put it best, "The plural of 'anecdote' is not 'data.'"
This article offers a provocative but shallow argument about Americans with Disabilities Act litigation. I feel for the small businesses who may run afoul of ADA requirements, but not for the Marriotts of the world, which have platoons of lawyers. I also feel for the public interest lawyers who vindicate our rights every single day, who are unfairly mocked and trivialized by an opinionated "Fiction writer" who knows not that she knows not that she knows not.
There are dozens of federal and state statutes with "private attorney general" provisions, empowering attorneys to recover fees. Those statutes, from antitrust to environmental to fraud securities law, work because the courthouse is truly open, as most state constitutions, to all persons to sue. The article lacks that context.
As Presidents Bill Clinton told the Association of Trial Lawyers of America (now Association. for Justice) in Chicago on July 31, 2000: "A right without a remedy is simply a suggestion,"
None of this background of other laws with attorney fee provisions is shared in the Times Magazine article. While I appreciate the Times covering the issue, journalists can and most do better about explaining the nature, structure and performance of the justice system, instead of complaining about a few lawyers doing too well. None were sanctioned for frivolous lawsuits, apparently. But the author still caterwauls.
So one man filed 180 lawsuits? That's a cheap headline. So some people are "repeat plaintiffs?" How trite.
Corporations are frequent litigants, often tormenting poor people with debt collection, evictions and foreclosures. Congress passed the Fair Debt Collection Practices Act in 1977, empowering lawyers as private attorneys general, but exempting lawyers as defendants.
One St. Augustine, Florida lawyer specialized in debt collection law from his earliest days in practice until 1992, coincidentally the year that Congress amended the FDCPA to cover lawyers. That lawyer instanter converted his practice to "elder law."
This article sounds like it is informed by talking points from the U.S. Chamber of Commerce and other "tort reformers," who want to deform our legal system to make access to the courts harder.
The few stray ideas shared about "reforming" ADA litigation are stray shots, unadorned by reference to legislative hearings or statistics.
The writer needed to spend more time understanding how ADA and courts work.
180 lawsuits? I know of a local hospital that filed at least 2755 lawsuits (and counting), and is never reported about with any critical analysis in the incredible shrunken g St. Augustine Record.
From The New York Times Magazine:
The Man Who Filed More Than 180 Disability Lawsuits
DanVy Vu was out on the floorof her restaurant one chilly evening in December 2019 when a staff member called her to the hostess station to assist an angry customer — a man in a wheelchair who, along with his wife, had been stuck outside. The couple said that they had tried the accessible entrance through a courtyard but found the gate locked, which had left the man shivering out in the cold while his wife circled back to a nonaccessible entrance at the front of the restaurant for help opening the gate.
Vu apologized profusely and looked up their reservation. It showed that they had requested an accessible table. But Vu’s staff was still getting used to a new reservation system and hadn’t seen the note; all the accessible spots were occupied. Vu apologized again and ushered the couple to the hallway to wait. Soon, she sat them at the accessible part of the bar. The couple ate and left.
Vu’s restaurant, Top Hatters Kitchen and Bar, had been open in San Leandro, Calif., for eight months. As a child, Vu used to cook for her family, who resettled to Southern California as refugees from Vietnam, and for a series of boarders who lived with them. A self-taught chef, she ran a food truck for six years after moving to the Bay Area, but the work was taxing. (Vu once posted on Instagram: “Our tired truck broke down so often, one year, we were invited to our repair shop’s company holiday party.”) She dreamed of opening a real, brick-and-mortar restaurant. For three years she saved up and applied for loans until she could afford it.
By the time that happened, Vu was 40. She had lived in San Leandro — a town of nearly 90,000 people that is both more diverse and more affordable than nearby San Francisco and Oakland — for roughly a decade. Vu was determined to open a contemporary yet affordable restaurant that welcomed everyone. In the style of California cuisine, Top Hatters incorporated a variety of influences — her Vietnamese heritage, her husband and co-owner Matthew Beavers’s Italian background. Less than a mile from their home, she found an old milliner shop (hence the restaurant’s name) and started construction on a hip, open-floor-plan restaurant that wrapped around the courtyard with the accessible entrance. “All our savings and dreams and hopes went into it,” Vu told me.
In the spring of 2019, Top Hatters opened to admiring local reviews, and Vu seemed to be on her way. It was when she was assisting the frustrated guest in a wheelchair that she suddenly recalled something she had been told when the restaurant was being designed: that they had to follow the rules “down to the smallest detail” when it came to the Americans With Disabilities Act. In recent years, litigation against businesses accused of violating the A.D.A. has risen sharply, as disabled people demand compliance with a law that has been in effect for 31 years. But some see the cases — many from people who make a practice of routinely filing suits — as a ploy for cash. Vu recalls being told that some people sued businesses “to make a living.”
Three months later, as Top Hatters was getting ready to celebrate its first birthday, Alameda County issued a shelter-in-place order as a result of Covid-19. Vu had to lay off 20 of her 25 employees. To keep the restaurant from going under, she dipped into savings; she also successfully applied for a Paycheck Protection Program loan and qualified for mortgage deferment. Then, in May, Vu and Beavers were served with papers: Someone was suing the restaurant for violations of the Americans With Disabilities Act.
Vu’s instinct had been right. The customer filing the suit was the one from that December — Albert Dytch, a 71-year-old man with muscular dystrophy who has filed more than 180 A.D.A. lawsuits in California. With the support of a prolific lawyer named Tanya Moore, Dytch has sued restaurants, movie theaters, shops and educational institutions.
The complaint against Top Hatters noted the difficulty Dytch faced getting into the restaurant: “Had Plaintiff been alone, he would have been unable to alert anyone that he was trying to get in.” It also claimed that the counter where he was eventually seated wasn’t at a wheelchair-accessible level — “Plaintiff had to reach upwards to reach his drink and food” — and that there was limited clearance behind him. “Someone bumped into his wheelchair, which jostled him as he was eating,” it read. Dytch was suing Top Hatters for $75,000.
To Vu, the lawsuit came as a shock — $75,000 seemed like a tremendous amount to compensate for Dytch’s experience. On the other hand, if Dytch didn’t have a disability, he wouldn’t have faced these barriers — barriers that were not just unpleasant but also, if verified, in violation of federal law. Was Dytch’s lawsuit merely a moneymaking venture? Or was it a necessary demand for justice?
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Top Hatters in San Leandro, Calif. The restaurant was sued by Albert Dytch over access issues.
In the United States, people with disabilities are “among the poorest, least employed and least educated of all minorities,” Lennard J. Davis, a scholar of disability studies, has written. They face discrimination in education and employment; difficulty accessing services like transportation and housing; and the high costs associated with being disabled in a society that has been built for people without disabilities and offers a limited social safety net. (Queer people and people of color with disabilities face even more discrimination than their white, straight counterparts.) For much of our nation’s history, a person with a disability in the United States had few civil rights related to the disability at all.
Then, in the 1980s, a bipartisan group of lawmakers — many of whom had close family members with disabilities or were themselves disabled — began agitating for sweeping civil rights legislation, similar to the Civil Rights Act of 1964, on behalf of people with disabilities.
In Congress, skeptics argued that newly specified rights for the disabled would threaten businesses expected to shoulder the costs of making spaces accessible. “Blank Check for the Disabled?” ran a 1989 editorial headline in The New York Times. But proponents said it would be an economic boon that would move disabled people off social-welfare programs and “into jobs, into restaurants, into shopping centers and into community activities,” as the legislators seeking a law wrote in a formal letter to colleagues. Disabled people organized mass grass-roots protests, helping galvanize a pan-disability movement that linked populations who previously considered themselves entirely distinct — veterans who had lost limbs at war along with the deaf, for example — in a common cause.
The Americans With Disabilities Act was signed in 1990 by President George H.W. Bush. Title III of the A.D.A. decreed that all businesses open to the public were required to be accessible and to make “reasonable modifications” to that end. In response to right-wing resistance to expanded governmental reach, those who fought for the A.D.A.’s passage decided against setting up a federal office to monitor or enforce it, the way the Drug Enforcement Administration enforces narcotics laws and Immigration and Customs Enforcement pursues immigration violations. Instead, lawmakers concluded that A.D.A. enforcement should happen through the courts — essentially transferring the role of enforcement from the government to individual disabled people and the judges who heard their cases.
As soon as the bill became law, lawsuits began. A majority of early cases were filed under Title I, related to employment discrimination against those with disabilities (the 1993 movie “Philadelphia,” starring Tom Hanks, was the story of a lawyer who sued his firm under the A.D.A. after being fired for having H.I.V.), and Title II, under which government offices could be sued for unequal access. Soon, though, plaintiffs also began to file Title III cases — those related to physical barriers — against ice-cream parlors, rental-car companies, movie theaters, hotels, private universities and the like. Many won. The A.D.A. was fulfilling its promise of opening access for, and reducing discriminatory practices against, the disabled.
Worried about offering a financial incentive to sue under the A.D.A., lawmakers wrote the law in a way that limits plaintiffs’ ability to collect monetary damages. A successful A.D.A. suit generally ends in injunctive relief — a court’s forcing the violation to be fixed — and the plaintiff’s legal fees being paid in full by the defendant. (A plaintiff can sometimes collect damages if he suffered bodily harm as a result of the access barriers, but this is rare.)
Still, there was — and still is — money to be gained in these suits. The fact that the law requires defendants to cover legal fees can encourage lawyers to sue, and even, critics claim, to drag the cases on for months or years. In fact, the $75,000 for which Dytch was suing Top Hatters was an estimate of the legal and expert-consultancy fees that would be required in his case. (That amount was the minimum demand needed to get the case into federal court.) Even if a defendant agrees to fix the problems immediately, these cases can require months of legal procedure, expert investigations and mediation sessions, which ratchet up the bill.
While a number of Title III A.D.A. cases were filed in the 1990s, lawsuits increased in the 2000s and rose even more in the 2010s. Word had gotten around that filing Title III A.D.A. cases could help people with disabilities accelerate long-overdue improvements in access. There was another big factor, too: Many states had codified their own versions of the A.D.A., and some of those laws — including in California, Florida, Pennsylvania, Illinois and New York — did allow for financial damages. That meant a lawsuit invoking both the A.D.A. and one of these state laws could result in money for a plaintiff. In 2012, plaintiffs filed 2,495 Title III cases in federal court. By 2017, that had more than tripled to 7,663 cases — more than half of which were filed in California or Florida, whose state laws can be particularly beneficial to A.D.A. plaintiffs.
California is an especially popular place for A.D.A. lawsuits because its separate state law, called the Unruh Civil Rights Act, allows for damages of up to $4,000 each time a plaintiff encounters an accessibility barrier — meaning that a plaintiff can visit an establishment several times, encounter the same barrier and state a claim for each visit. Most disability-related cases in California — including the one Dytch filed against Top Hatters — cite violations under both the A.D.A. and the state’s Unruh Act in a single, bundled lawsuit in federal court.
Of course, most cases settle, with a defendant typically agreeing to fix the violations that the lawsuit surfaced and pay back the plaintiff’s legal fees, generally in the thousands of dollars. In states that allow damages under their disability laws, a plaintiff can also be financially compensated through that process.
A paraplegic man named Samuel Love is known throughout California for filing hundreds of claims, mostly about noncompliant parking at businesses such as gas stations and hotels — violations he is able to find without even leaving his car. In March 2020, Love sued a San Jose store owner named Dong Nguyen in federal court in the Northern District of California, claiming that he “failed to provide wheelchair accessible sales counters.” A judge dismissed the lawsuit after Love missed a deadline for filing paperwork. “They are not customers,” Nguyen told me of serial litigants like Love. “They go around looking for something and sue.” Love’s A.D.A. lawyer, Dennis Price, noted that his clients “very frequently” patronize the businesses they sue and “are customers by any reasonable metric.”
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Dong Nguyen, who owns a store at the Westfield Oakridge Mall in San Jose, Calif., was sued over accessibility issues by Samuel Love, who claimed he “failed to provide wheelchair accessible sales counters.” A judge dismissed the lawsuit.
Price works at the Center for Disability Access, a prolific source of A.D.A. suits. Though its name might suggest a nonprofit operation, the Center for Disability Access is in fact a wing of a private law firm called Potter Handy. The firm files thousands of cases each year, many with repeat plaintiffs, including Love.
Another client of Price’s, a lawyer named Scott Johnson, who is quadriplegic, is perhaps the most infamous of serial litigants. This is partly because of the volume of his cases — on occasion he has filed more than a dozen lawsuits in a single day — and partly because he has himself encountered legal trouble, including a federal indictment for failing to pay taxes on hundreds of thousands of dollars he has earned in recent years from A.D.A. settlements. (Johnson pleaded not guilty — his lawyer in that case, Malcolm Segal, contends that Johnson’s settlement money was tax-exempt — and the case is awaiting trial.)
Johnson’s former paralegals have said that he used to instruct them to drive around town looking for violations so Johnson could file suit. At times, paralegals said, he would accompany them, but rarely leave the car. (Price said Johnson was always present when potential violations were identified.) In any given year, Johnson files 300 to 400 lawsuits in California; he has filed thousands over the course of his career. A handful of businesses closed for good following lawsuits: a hamburger joint, a deli, a beloved pool hall. “As for Scott Johnson, he got nothing from me but a closed business,” Mike Murphy, the owner of the shuttered Jointed Cue pool hall, told me. “The heartbreaking part of this is that it’s a staple in the community. It’s a historic place. And that’s gone because of this lawsuit.”
Price noted that a business’s closure after a lawsuit “does not imply causation.” He said that he and his colleagues see their clients as helping to enforce an important law. “These are testers,” Price told me. “They are making sure that California is compliant. They are putting themselves and their time on the line for access.” In 2007, in response to a lawsuit claiming vexatious disability litigation, the United States Court of Appeals for the Ninth Circuit issued an opinion making a similar point: “For the A.D.A. to yield its promise of equal access for the disabled, it may indeed be necessary and desirable for committed individuals to bring serial litigation advancing the time when public accommodations will be compliant with the A.D.A.”
Once Dytch sued Top Hatters, Vu thought it might be over for the restaurant. But she rallied, taking out a loan with a double-digit interest rate, while also borrowing from relatives, to keep the business afloat and pay a lawyer.
She did some research on Dytch and learned that he was a serial filer: “He did this for a living,” she concluded. She was committed to her restaurant’s being accessible to all guests, she said, but to her eye, Dytch’s lawsuit was a ploy for cash. The timing, during a catastrophic pandemic, didn’t help. On some nights, Vu had only six orders, but she needed roughly 50 to break even. “We basically kept it open and running so that our workers would have a job,” she told me. In spite of the generosity she felt from a band of customers who stayed loyal to the restaurant — one even donated $200 from his stimulus check to Top Hatters — she was sinking deeper into debt and growing misanthropic. “For a while there,” she told me, “I just looked at everyone like: ‘You’re going to sue to me. You’re out to get me,’ you know?”
In many accessibility lawsuits, A.D.A. inspectors are hired to take a look at properties and see where they fall short. According to Candice Lui, an inspector who visited Top Hatters, the counter that Dytch had complained about was, in fact, compliant. Lui recommended a few other changes, however, to ensure accessibility: moving a chair and cabinet from the bathroom; using stickers to indicate which tables were accessible; installing a locking mechanism to keep the gate from accidentally closing during business hours. (Dytch said, “I don’t believe the list of recommended changes adequately represents the situation, but confidentiality constrains me from providing a fuller account.”)
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To an extent, Vu felt vindicated. “But my lawyer said it’s cheaper and faster to just settle and do what they say than fight it,” she told me. In September 2020, the parties settled: Top Hatters would pay a certain sum and fix the issues that the inspector had found. The terms of the settlement prevent both parties from disclosing the amount. It was less than the initial $75,000 Dytch demanded but large enough that Vu recalls thinking, Well, there goes our tuition money. (Her son was heading to college.)
Afterward, she alerted every small-business owner she knew to hire a consultant to be sure of compliance. “I was like a walking P.S.A.,” she told me. “Everywhere I went, I said: ‘Do you know about this? You have to be careful or this could happen to you!’” She wanted to make sure that everyone had fully accessible, nondiscriminatory businesses — and that they fixed any barriers before they were served with papers.
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Dytch, guiding his wheelchair at home in Oakland, Calif.Credit...Balazs Gardi for The New York Times
I wanted to meet Albert Dytch to hear his side of things, so I wrote him a note. He expressed some hesitation: “Most media coverage has been slanted against plaintiffs like me.” He sent me a link to a website he recently created. “The civil rights of those with disabilities are violated every time they’re denied the same benefits and privileges as the able-bodied,” the home page reads. “Yet relatively few have the time, energy, courage and fortitude to insist that these rights are honored and protected in accordance with the law. I invite you to view the situation from the vantage point of someone in a wheelchair.”
To the extent that serial litigation over the A.D.A. has received attention — mostly in local papers and on television — it’s common for litigants like Dytch to be cast as enemies of the small business. In a 2020 law-review article, the lawyer Evelyn Clark wrote, “Media outlets often tell the stories of greedy individuals targeting unassuming small business owners who were unaware of the A.D.A. and their noncompliance (despite the law having been in effect since 1990).”
Clark, who is disabled, points to a segment of a 2010 episode of “This American Life” entitled “Crybabies” — a rare instance of A.D.A. lawsuits receiving national attention — in which a reporter follows a serial A.D.A. litigant around in an attempt to call him on his bluff. “In California, a kind of crybaby cottage industry has popped up around, of all things, the Americans With Disabilities Act,” Ira Glass, the host of the show, said. To Clark’s eye, this kind of coverage distorts the main issue, which is that people with disabilities continue to face significant barriers in getting through their daily lives. She told me that the existing media coverage has been so bad — and, to be fair, the lawsuits so copious — that “people see a person in a wheelchair come into their restaurant and think they’re going to get sued.”
Disabilities, Kim E. Nielsen writes in “A Disability History of the United States,” rub up against the American value of individualistic, self-sufficient grit. People with disabilities are thus often cast as a drain. Serial litigants like Dytch are read as scammers trying to turn a profit.
Eventually, Dytch agreed to meet in his backyard in the hope of offering a different perspective. He lives with his wife, Andrea, in a sweet, one-story cottage in a tree-lined residential neighborhood of Oakland. They had left the front door open for my arrival, and when I walked in, Andrea was readying Dytch to head outside into the chilly spring afternoon, helping him pull his jacket over his arms and draping a blanket across his legs. Dytch wore wire-rimmed glasses and a baseball cap over a thinning head of hair. He greeted me warmly and invited me to follow him outside.
Under the shade of his backyard pine, Dytch told me that in 2008 he attended a muscular-dystrophy support group where an A.D.A. plaintiffs’ lawyer named Tom Stewart made a presentation about disability rights. Stewart also talked about the possibility of seeking legal relief, and Dytch signed up to speak with him. In 2009, he filed his first case. It set in motion what has become almost a second career for Dytch — one that, like most jobs, requires time, comes with a fair dose of stress and offers financial compensation. (Dytch later started working with Moore.) While exact amounts are confidential, Dytch told me that in any case that settles, his share has typically been $4,000 or less — and, in some cases, he has ended up with no financial compensation at all.
Early on, he began to feel that filing these cases helped him find the agency he had lost as his illness progressed. The more limited his mobility became, the more of the world had become closed to him. Restaurants and shops he once frequented and enjoyed were no longer places he could go with ease or at all. He felt he was fighting not just against the difficulties, barriers and humiliations he routinely faces as a disabled person trying to go about his life, but on behalf of a larger community. The work wasn’t easy, though, and its adversarial nature could feel painful. “It’s like being a parking-meter person,” he said. “They don’t thank you.”
From his perspective, it’s not his lawyer who is drawing out the cases but rather the businesses. If businesses truly wanted to be accessible, they would fix the barriers and settle cases as soon as possible, keeping costs lower for everyone (though even this strategy can cost defendants tens of thousands of dollars in settlement and legal fees, as it had for Top Hatters, and more if there is significant remediation needed to fix accessibility barriers).
Dytch’s complaint against Top Hatters explained that he and his wife had gone there to celebrate his birthday. He had made the reservation with a specific accessibility request, and it simply wasn’t met. It was frustrating and demoralizing, Dytch explained to me, to have to ask for special help to get inside. When I asked if he could recall any other details about the evening, he said he couldn’t.
I also asked Dytch about another restaurant he had recently sued. “I think there was an issue with the bathroom,” he said. He stared at the table for a moment, trying to remember. “And there was a problem with the seating.”
In a Google search, I was served an ad by an A.D.A. defense lawyer named Rick Morin. “Albert Dytch Lawsuit,” the ad read. “We Provide Strong & Effective Representation to Help You Take a Stand. Call Now!” Dytch is a marriage and family therapist, and if potential clients search for his name and see Morin’s ad, it could impact his business. Morin, in Dytch’s eye, is using his name to profit from A.D.A. lawsuits. (Morin wrote in an email, “These mom-and-pop businesses cannot defend themselves on their own.”) Dytch told me he created his own website to have somewhere to send people inquiring about the lawsuits and to create a platform for his perspective.
I asked Dytch why, if accessibility is the purpose, he brings lawsuits instead of just writing a letter to a business asking for a fix. The simple answer, he said, is that asking doesn’t work: He has tried again and again, only to go back to a business and see the same barriers in place. The fact is, the A.D.A. functions because it presents a legal threat. Most businesses will pay thousands of dollars to fix their bathrooms or install wheelchair ramps not because it’s the right thing to do, but because they could be sued for many thousands of dollars more for not having done it. “This is a law that exists in the heavens,” Davis, the scholar of disability studies, told me. “It doesn’t work unless you bring a lawsuit.”
At the same time, Dytch told me plainly, “If there weren’t some money involved, I probably wouldn’t do it.” It takes a good deal of his time to bring such suits, not to mention the stress and public exposure of the work. Right before we went outside, Dytch asked his wife to grab a piece of paper he had left on the printer. Now he took it from his coat pocket and slid it across the table to me. “Disability Out-of-Pocket Expenses,” the typewritten document was titled. He had listed estimated costs for a disabled person’s basic needs. One-time expenses included $10,000 for an overhead lift system and $4,000 for an adjustable bed. A wheelchair-accessible van set him back $65,000 (Dytch is on his second) and a power wheelchair cost $25,000 (he’s on his third). Only $10,000 of this was covered by insurance.
Then there are the annual costs. As Dytch’s mobility worsened, it became more difficult for his wife to provide adequate care, which put a strain on their relationship. “I want to be your wife, not your caretaker,” she told him. This was hard to hear, but he knew she was right, so they hired outside help. Now they spend $55,000 for a daytime caregiver. He expects to have to hire a nighttime caregiver soon as well, because he has been needing to get up more often at night. That could cost another $45,000. Living in this world as a disabled person is costly — emotionally, physically and financially.
“The law is subsidizing me to correct things,” he told me. “Then I earn money to defray the exorbitant costs of being disabled.” Viewed this way, the United States government is not only outsourcing the enforcement of its law to individuals like Dytch, it is also outsourcing the cost of social supports for the disabled to businesses. The Americans With Disabilities Act wasn’t set up to defray the cost of being disabled, though, but to simply ensure access.
Before I left, Dytch led me inside and gave me a tour of his house. In his bedroom, a metal crossbeam was bolted into the ceiling; a hook fastened to the beam could slide from side to side. This was part of the overhead lift system mentioned on the paper he showed me. “I sit in this harness here,” he explained, picking up a set of cloth straps from where they lay on the mattress, “and then this hook attaches to it and helps lift me in and out of bed.” They had installed these beams in the bathroom, too, so he could be lifted onto the toilet and into the shower. The fixtures have made a huge positive impact on his mobility and on his wife and caretaker. But they weren’t cheap.
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The overhead lift system in Albert Dytch’s bedroom, in Oakland, Calif., one of many expenses required to retain mobility. He also uses a wheelchair-accessible van and a power wheelchair.Credit...Balazs Gardi for The New York Times
Dytch told me the pandemic has made him a little hesitant to sue, as he knows businesses are struggling. While he filed several cases, like the one against Top Hatters, for visits he made before government-ordered shutdowns started in March 2020, he hasn’t filed any based on visits he made after that time — his slowest pace since his first lawsuit in 2009: “I have to wrestle with my conscience and my wife,” he said.
Andrea, he explained, has grown more hesitant about lawsuits. She is a compassionate and sympathetic person by nature and is conflicted about them. “I wish that the burden of enforcement did not fall on the disabled themselves,” Andrea wrote to me later. “Yet the help Albert has gotten through settlements has made it possible for us to afford some of the care he needs.” Dytch doesn’t want businesses to suffer, but he also wants to fight for proper access. The question he now has to ask himself, he told me, is “What is the right thing to do, under these circumstances, that causes the greatest good?”
The reason defendants are generally willing to settle A.D.A. lawsuits is that there are, in fact, widespread violations of the law. The A.D.A. includes standards for accessible design, over 279 pages, on specifics including the grade of a ramp, the width of a parking space, the length of a toilet-stall grab bar and the height of a mirror. While some of these details might appear insignificant to a person without a disability, they are there for good reason. “A matter of inches with a mirror might seem minor to some of us,” Davis said, “but for a person of small stature, it means the difference between being able to use the mirror and not.”
Most business owners are not aware of these details. In fact, proprietors of businesses that are sued might have believed they were in compliance — having received signoff by local building inspectors who may or may not be well versed in A.D.A. guidelines — until the lawsuit makes evident they were not. If a plaintiff wins a lawsuit, the defendant will be compelled to make “readily achievable” accommodations — any changes to make their building accessible that don’t come with tremendous cost or effort. Putting in a ramp, for instance, is a readily achievable accommodation, but rebuilding an old elevator shaft so a person in a wheelchair can ride between floors is not, even though the A.D.A. standards call for wheelchair-accessible design.
Top Hatters has survived, but Vu is still crawling her way out of debt. The restaurant has a lot of outdoor tables these days, and she wonders how to ensure that she’s complying with accessibility requirements in that context. For instance, if a heat lamp is blocking one of the paths to a table because a customer requested it, can Vu just return it to its regular spot if someone who uses a wheelchair comes in or should it not block the path in the first place? “I really want things to be comfortable for all our guests, and sometimes it’s hard to know what the rules really are,” she said.
Though Dytch stopped suing while the pandemic kept people homebound and businesses closed, others have not. From March to December 2020, Scott Johnson filed 303 complaints in the Northern District of California. In the same period, Samuel Love filed 56 cases in that district. Both continued strong into 2021 — often filing multiple cases a day.
Lately, Love has been filing cases against hotels that he claims have failed to adequately describe the details of their A.D.A. accessibility measures on their websites. These lawsuits are part of a genre of A.D.A. case that is well suited to the pandemic because they can be filed without a plaintiff’s ever leaving home. Guidance from the United States Justice Department deals with accessibility in online reservations systems, but there have been disputes over how to interpret it. Philip H. Stillman, a lawyer hired by Marriott International and a consortium of independent hotels to defend them against such lawsuits, contends that the guidance requires online reservations systems only to list accessibility features in broad terms. Specifying that a room is A.D.A.-compliant should be enough. Price, the Potter Handy lawyer, argues that the guidance is vague and its implications unclear.
“Again, my clients — they are advocates,” he told me. The suits he brings, Price emphasizes, are often intended to open up more accessibility in the future. His firm once helped plaintiffs bring suit against several car dealerships for failing to provide hand controls to allow people with mobility impairments to test-drive their cars. In 2017, the Ninth Circuit ruled in favor of the plaintiffs, concluding that offering hand controls was a “reasonable modification” under the A.D.A. Because of this legal precedent, dealerships began keeping such technology on hand, meaning people with physical-mobility challenges are able to test-drive cars more easily in California as a direct result of these suits. Price is hoping the same will be true of hotel websites in the future.
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Jon Handlery at the Handlery Union Square Hotel in San Francisco.
I visited San Francisco’s Handlery Union Square Hotel, which had been included in the recent flurry of lawsuits regarding website listings. Jon Handlery, whose grandfather started the business in 1928, now owns it with his children. He met me in the parking garage and led me through the empty hotel. The Handlery closed and laid off nearly all its staff in April 2020 because of the pandemic and reopened only recently.
Handlery emphasized to me how badly he wants to do right by disabled people. They are customers, after all, and keeping any customer happy is good business. The hotel has been sued four other times for various disability violations and never by anyone who has actually stayed there. At this point, he sees these lawsuits as a cost of doing business — and he knows that, even if he believes a case is frivolous, it’s better to just quickly settle the case than to rack up legal fees trying to fight it and risk losing big. But the hit is extra hard in an industry that has been eviscerated in the past year.
So far, none of the hotel lawsuits have been decided in favor of the plaintiff, but a vast majority are still pending. In June, the case against the Handlery was dismissed by a federal judge. Stillman, who represented the hotel, is among those who believe lawyers bringing these suits are after money, not justice. “Think about it,” he tells me. “You file the same exact complaint 200 times, and each one you’re seeking attorney’s fees of $25,000.” Even if the 200 suits settle for, say, $5,000 each, Stillman says, “that’s a lot of money for doing nothing.”
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The Jointed Cue, a billiards hall in Sacramento, closed after an A.D.A. lawsuit from Scott Johnson. Mike Murphy, the owner, said: “It’s a historic place. And that’s gone because of this lawsuit.”Credit...Balazs Gardi for The New York Times
The trouble with accessibility litigation is that the discussion always seems to boil down to money. Frequently left out is the role of the government. If the federal government truly prioritizes disabled people’s needs, defendants and lawyers told me, perhaps it should help offset the costs for small businesses to improve their accessibility. At the very least, they said, city and county building inspectors should be better versed in the A.D.A. and ensure compliance upon inspection, thereby taking some of the burden off the disabled to act as enforcers.
But what to do about truly vexatious litigation — if it’s even possible to parse the genuine from the frivolous? When there is lawyer profit to be made from these cases, as the law professor Helia Garrido Hull wrote in a 2016 article in The Cornell Journal of Law and Public Policy, “money is diverted away from the real need — correcting the underlying violation that justified the lawsuit and providing the disabled plaintiff with equality and accessibility.”
Defense lawyers I talked with spoke of the need for a “curing period” — a set amount of time after a case is filed during which a defendant can fix any problems, thus ending the lawsuit. The lawyer Evelyn Clark is in favor of a curing period, pointing out that lawsuits can last months or even years before a barrier is remedied and that this would significantly speed things up.
Many disability-rights activists, however, oppose curing periods. Davis believes they would disincentivize businesses from doing anything about a known violation unless a lawsuit is filed. Another option, he suggests, is for bar associations to sanction lawyers who have been found to file frivolous suits. Repeat litigants could be subject to some kind of judicial review. There could also be more oversight of the fees that plaintiffs’ lawyers charge defendants after a successful case, to ensure they are not excessive.
In the United States, one in four people lives with some form of disability; around the world, one billion people do. For now, that is. When the House version of the A.D.A. was introduced, Major Owens, of New York, said, “When you think about it, our entire country is made up of disabled people and temporarily able-bodied people. The people we are protecting are not a mysterious, distant ‘them’ but rather ourselves.”
As someone who could once move around the world much more freely, Dytch is less willing to swallow the indignities of being denied access than he might have otherwise been. When he created his website, he chose the hummingbird as a kind of mascot. He became enraptured with the bird after a friend traveled to Costa Rica and came home bearing photographs of all the different species she encountered.
“I admire hummingbirds for their intense vitality, their breathtaking beauty and their exquisite grace,” he writes on his website. “They’re the only birds with the ability to fly in all directions, including backwards and sideways. Hummingbirds can go practically anywhere.” In this way, he told me, they are hyper-abled; the whole world is wide open to them. “I don’t expect to turn into a hummingbird anytime soon,” he writes. “In the meantime, I’d settle for the ability to go anywhere most able-bodied people can go and do what most able-bodied people can do.”
Lauren Markham is a fiction writer, an essayist and a journalist who focuses on youth, migration, the environment and her home state, California. Balazs Gardi is a photographer who splits time between San Francisco, Los Angeles and New York and is known for creating long-form, immersive projects that explore the tensions between people and their environment.
A version of this article appears in print on July 25, 2021, Page 22 of the Sunday Magazine with the headline: The Price of Access.
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