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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 quadriplegic man 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 Foods 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. View a list of Midpeninsula businesses facing lawsuits.
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 the COVID-19 pandemic, and that the city may have some responsibility for the multiple lawsuits.
‘It is absolutely a shakedown, it’s extortion by all means.’
Tony Han, owner, Tai Pan restaurant
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.”
‘The world presumes an awful lot of things about people who are going to patronize businesses, and what’s important and what’s not.’
Dennis Price, attorney, Center for Disability Access
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.”
Kevin Forestieri writes for the Mountain View Voice, a sister publication of PaloAltoOnline.com.
Kevin Forestieri writes for the Mountain View Voice, a sister publication of PaloAltoOnline.com.
Kevin Forestieri writes for the Mountain View Voice, a sister publication of PaloAltoOnline.com.
Kevin Forestieri writes for the Mountain View Voice, a sister publication of PaloAltoOnline.com.
Wow, Scott Johnson seems like a real piece of work. Fixing ADA violations is a laudable goal, but It is possible to get businesses, who are struggling to survive, to change without lawsuits and expensive settlements. The fact that he is going straight to lawsuits tells you all you need to know about his real motives. He’d better hope karma isn’t real…
I recall an article some years ago about another serial litigant (or maybe it’s the same one) who made his living suing businesses up and down the Peninsula. While I found this unsavory, I’ve since read stories from the POV of a person in a wheelchair. It’s not easy navigating, especially with older buildings not upgraded to be ADA compliant. There’s no enforcement to the ADA except suing the business to upgrade the violations.
This person has taken this on as some sort of crusade, if the map of all the suits is any evidence. Anyone else in court that much would be classified a Vexatious Litigant by the court, yet this person is making nice a living doing this. If it were a group of people, I’d be cheering. But one person is doing this makes it feel like legal extortion. I understand that the way the ADA is written, a single person is the only one that can file these suits. But there should be monetary limit. This person is gaming the system.
A disabled buyer wanted a seller to add ramps to make the unit for sale accessible at my condo complex. The HOA would have had to build ramps to the garage and a charging station for their vehicle. I told the realtor that the ADA doesn’t apply to residential buildings and the buy would have to pay for the ramps out of their own pocket. But it was unlikely that HOA would approve the change to the building, the ramps, or the electrical upgrade to the garage. They went elsewhere and I’m glad.
So what is acceptable?
Some on the Council want to make the Cal Ave street closure permanent. And closures and outdoor seating have already been long term.
Surely we think all businesses, including restaurants with indoor and outdoor seating, should comply with the law. Under which all people have the right to dine, use facilities, access retail businesses or use sidewalks unimpeded – and now closed streets.
Enough time has gone by. I see this as a wake up call. If, for example, outdoor dining areas are allowed to remain, they must simply comply with laws that allow disabled people the same dignity and access others have. That’s the point that seems to be lost here in the ire shown toward Johnson.
Johnson is a serial litigant. He’s filed over 2,900 ADA lawsuits since 2003. He’s a Sacramento based attorney whose been a quadriplegic since drunken hit and run driver in 1981. He was 19. He’s been sued for tax fraud (unreported income – lawsuits) and sexual harassment. His ADA “complaints” in Sacramento — his employees (law students, etc.) went into the businesses to “scope” while he stayed in the van. That’s fraud. He’s been sued as well. This is well documented in the media. This is legal extortion.
There is a sick kind of sadness in doing this. If someone in a wheelchair or is blind, why don’t they ask for a chair to be moved rather than being so unkind at a time like this? All those outside tables are being moved by people who want a little more shade or similar and probably don’t have very much to do with the owners.
It is people who do things like this that put all disabled people in a bad light. All those I know who have mobility problems are lovely people and when they ask for help getting by people are usually so helpful to them. In fact, most give help or move out of their way without being asked.
For small businesses doing their very best to keep their heads above water this is mean spirited and vengeful. Making money out of these outside dining areas is nothing short of spite.
Did Mr. Johnson bother to politely point out the ADA deficiencies and give these struggling businesses an opportunity to correct them before he filed suit? That would have been the decent thing to do. They may simply have made mistakes in the overwhelming efforts to save their businesses in the face of pandemic. This kind of predatory suit without any cooperative effort is how people create opposition to ADA legislation that we really need, instead of engaging people in a positive way to get their cooperation and political support universally to solve a problem.
Of course, Mr. Johnson couldn’t collect legal fees if he pointed out the problem to the owners and gave them an opportunity to fix their mistake. This is the kind of stuff that gives lawyers a bad name. Mr. Johnson, you are no hero to the disabled. Stop behaving like a predatory bottom feeder.
I also read about Mr. Johnson. He is extorting people and personally benefitting. I think he would benefit from doing some deep work to get over the fact that at 19 he was hit by someone drunk and his life changed. He certainly can help with telling businesses DIRECTLY to work on ways to make their places more accessible for those disabled. Given he doesn’t even go to the places he sues is what is so sad and he does not bother to talk with the business owner. In my opinion, he has personal work to address since, hurting people hurt others. I pray that he works on forgiving the drunk driver and focus on healing himself and then he can speak with businesses about how they can accommodate those disabled.
Scott Johnson pulled this same trick in the Medford Oregon area a few years ago. Instead of caving in and paying him off, the restaurants got together, hired a smart lawyer and ran him off.
Don’t cave in to what’s basically blackmail. Hire a lawyer as a group and fight him. Good luck!
Many businesses are forced to shut down as a result of these nuisance lawsuits. Long-time, great local business Barron Park Plumbing Supply closed a couple of years ago due to a similar lawsuit:
https://mv-voice.com/news/2019/11/26/rico-suit-against-disability-law-firm-settled
Johnson is doing this to line his own pockets! If he was so adamant about helping fellow disabled people he would Donate the hundred of thousands he makes off the back of small businesses! I have no sympathy for him!
He is an absolute fraud who is being investigated by several entities. I believe I read in one article that he has assistants visit places rather than going himself. He has closed down several restaurants in the San Jose area.
I ‘m not siding with this awful lawyer, but for many years a female employee used to park her large luxury SUV in the handicapped space in the parking lot adjacent to Tai Pan, and unlock the front door every late afternoon. A van load of workers would then arrive in an old beat up van and park in the lot near that stinking greasy dumpster at their back door. Just sayin’ . . .
Here’s a link to just one aspect of his alleged criminal doings. It’s be great if a local exposé on him could be done. https://www.sacbee.com/news/local/article250786089.html
This person is a crazed monster, pure and simple. He is perverting the ADA, which has good intentions, to fit his crazed, hateful, angry sense of revenge (IMHO). The ADA’s idealistic, legally & naive supporters had good intentions — not realizing that “the path to Hell is paved with good intentions”. The ADA needs to be amended to prevent predatory serial litigants like this monster from using it to take out their hatefully insane revenge upon relatively minor and innocent defendants. Simply put, the ADA must be amended to prevent crazed fools from creating chaos and harm just to fit whatever hateful alternative universe they live in.
Echoing the above post. This serial vexatious litigant has done more than enough damage. Shouldn’t there be a limit to the number of suits one person can file?
He should be disbarred. And people wonder why attorneys rank as some of the least trusted and most hated professionals in the world. He’s the poster boy.
His issue is the tables that are in the street, but if you look at the picture in the article, there are 4 tables near the front door that can easily be set-up to accommodate wheelchairs.
If the vaunted Legal Bar doesn’t go after major miscreants like William Barr, it’s unlikely that they will bother with worms like this one. In Johnson’s case, his punishment (a life sentence) came before his crime.
I’ve heard of “ambulance chasers” but never “discrimination chasers.” I suppose that this is a thing now. Why isn’t arbitration a natural and required part of such lawsuits? If the “remedy” is change, then why can’t the change be made without exerting a hefty financial penalty (via a settlement or “damages”)?
I had a neighbor who was quadriplegic. She was always assuming “discrimination” when it came to anything and everything. I really felt for her; however, her attitude was always confrontational with others (e.g., landlords, businesses, etc.) and she would threaten lawsuits all the time. Her plight in life was difficult; but, she seems to have made it harder for everyone around her too.
Johnson seems like the guy seeking to make the world a better place for him by making it harder on everyone else.
A citation to fix or correct non-compliant ADA violations should be issued first and then followed by a lawsuit if warranted.
Hitting someone where it hurts the most, in this case one’s pocketbook is the only way ADA mandates will be adhered to.
Anyone who operates a business should be knowledgeable of all ADA guidelines and address them prior to accepting even one cent from a customer or client.
No sympathy here for those caught in the web of this whistleblowing endeavor as they could have easily prevented it.
Ignorance is no excuse.
@ VaxMan–
There have been legislative proposals to give business owners 60 or 90 days after a “notice of violation” to correct ADA deficiencies before a lawsuit could be filed, but they haven’t gotten anywhere, as far as I know, so these lawyers and their lobbyists have probably shot them down.
If businesses are not complying with ADA mandates, they should be be forced to close pending completion of the required improvements and modifications.
There is more to life than making money at the expense of the handicapped.
A predictable outcome to the usual “feel good” legislation which is based on emotion and little pragmatic thinking. The ADA has been used for even crazier suits, like claiming that truck drivers with drug or alcohol problems have not been provided with reasonable accommodation for their “disability”.
Though they may be dismissed as nuisance lawsuits, continuing efforts to accommodate the disabled will result in fewer lawsuits.
Pay now or pay later.
I just read the print version of the article, and the sentence that resonated with me was this: “it’s not normal to give businesses zero chances to fix these unapparent accessibility problems”. The fact that this man is going straight to lawsuits demonstrates, as another comment points out, his real motive: making money and causing problems for people. Also the law firm’s purpose, evidently. Our purpose in life should be to HELP others. The ADA rules are spozed to do that. But turning them against small businesses with no warning is NOT helpful. There should be some way in the law to not have to pay fines when no one gave you fair warning but rather to allow time to fix the problem. Sure “ignorance of the law is no excuse”. But as many have pointed out, this past year has made everything difficult, and especially hitting up these small restaurants for their outdoor seating without giving them any chance to fix it, is just plain mean. There’s also the point made by 2 of them that they don’t recall someone coming to try to eat there, but instead people coming to measure the spaces. I’d think maybe they should demand proof that the person actually tried to eat there. Such a person should at least have said something to the wait people, so that someone would have made a note of it or at least remembered it as a not-everyday occurrence. Or the person doing the measuring should have explained what he was doing – that nothing was said proves it was a “secret” plan to attack them. You only spy on those you consider enemies!
Basically I think this person and the law firm working with him are proving who they really are, what their real intentions are: stopping others.