Ada Litigators Photograph Before Suing

If you are a landlord and/or tenant and operate a business in California that is open to the public, the Federal American’s with Disabilities Act (ADA) requires that your public accommodation comply with the federal disabled access codes. Many disabled plaintiffs who regularly sue over ADA violations will first go to the property or send someone to take pictures of the alleged ADA code violation to preserve the evidence. If the owner/operator denies having a barrier because it was fixed, the plantiff most likley has a photograph. Changing it to meet the ADA code, however, is beneficial.  

 The ADA has regulations and standards with measurements and slope requirements found in the ADAAG (Americans with Disabilities Act Accessible Guidelines or the ADAS 2010 codebook, i.e., the Americans with Disabilities Access Standards. The California disabled access codes are similar to the ADA and they are in Title 24 of the California Building Codes or the California Code of Regulations.  

 Most owners and operators of public accommodations (businesses open to the public) believe their property complies with the ADA and/or Title 24 because it has some ADA features,  like disabled parking. Unfortunately, there are quite a few disabled individuals, mostly in wheelchairs, who sue for a living, and they hunt down older properties that are not in perfect ADA compliance.  These professional plaintiffs earn a livelihood by doing “drive-bys” to search for ADA imperfections. They will stop by to scope out the most minuscule ADA accessible code violation. Worse yet, their attorneys may send out an inspector to take pictures to prove that the ADA and Title 24 access codes have not been met. 

For example, if there a missing “van” sign at your disabled parking place, they will hail you into Federal Court claiming ADA violations. The disabled plaintiffs will allege that they suffered injuries due to disabled access barriers, which is discrimination.  Essentially, ADA access discrimination is determined by a tape measure or a level regarding slopes. Your good faith effort to comply and provide access is entirely irrelevant. It has almost become a strict liability law with hardly any defenses. 

The plaintiff must prove that he or she was “barred” from full and equal access to your public accommodation, and so far, a slight deviation from the disabled access code is permitted to uphold a valid ADA lawsuit. So, despite having a proper sign of the person in a wheelchair (ISA symbol), the disabled plaintiffs will argue that the missing “van” sign denied them full and equal access. How is that a barrier? And, unfortunately, many Judges in the California Federal Courts have been liberally allowing these types of ADA claims. It does not even matter how many ADA actions a plaintiff has filed. 

Disabled Mr. Scott N. Johnson is notorious for suing thousands of businesses in Sacramento, Stockton, Santa Clara, San Jose, Oakland, San Fransisco, and the East Bay Area. If you see anyone taking photographs of your property, it is a flag for a potential ADA lawsuit. It generally means that a disabled plaintiff is setting you up for a lawsuit in Federal Court because of an alleged disabled access barrier and/or ADA code violation. They sue for money, damages, and attorneys fees because of “imperfect” compliance, and yet we live in an imperfect world. The ADA does not have any defense such as “substantial compliance,” and/or that you acted in good faith to comply. 

As to the photographer, you may certainly confront him or her. Ask what they are doing and why. One of my client’s videotaped the inspector and wrote down his driver’s license. He asked the man why he was taking pictures. The man vaguely stated that they wanted to “give him the codes.” The man continued to walk around very slowly. What they gave my client was a Federal ADA lawsuit. The photos taken by the inspector were attached to the Complaint.  The inspector’s statements were clearly misleading. Where is truth and justice under the ADA? 

If a plaintiff truly desires ADA access compliance, then the plaintiff would contact the landlord and/or tenant and inform them of the alleged barriers and injuries for immediate remediation. No, they sue in Federal Court for money. How that little green and white piece of paper shapes one’s character.

Idea: If you see such a photographer, consider contacting an ADA attorney right away. Start to make the “correct” ADA changes. The vendors and workers do not always know the “correct” way to comply with the codes because there are gray areas that have been disputed in court. The courts interpret the ADA access codes resulting in a case or order. That becomes the law interpreting the ADA access code. ADA attorneys are aware of the cases, defenses, limitations, alternative solutions, and the like. 

A worker or vender, or non-attorney expert could throw the entire ADA access codebook at you, which is very expensive and overwhelming. Most just identify a barrier without recommending a solution, and/or how to comply and save money.  

You may want to consider contacting a California Access Specialist, known as a “CASp” to inspect your property for ADA and/or Title 24 compliance. Be aware, however, that the CASp may also throw the book at you with a large report instructing you to comply with everything. 

Consider seeking legal advice from a very experienced ADA attorney to protect you from an extensive CASp report, and disclosure of more barriers to the disabled plaintiff. This is because the plaintiff can amend his lawsuit and add the barriers discovered by your CASp, and paid for by you. The plaintiff can use your CASp report against you. An attorney working with a CASp can use the attorney-consultant privilege to protect the unclaimed barriers found by the CASp from being disclosed to the plaintiff. 

I personally do not like the use of the word “violation” because it assumes that you owed a duty to the disabled plaintiff who really intended to set you up for a lawsuit, not enjoy your goods and services. There is no ADA violation based on a vexatious plaintiff who truly wants access to your bank account.

By Catherine M. Corfee, Esq., (ADA Attorney since 1995, worked for two U.S. Federal Magistrate Judges in the Eastern District of California)

• Corfee Stone Law Corporation
• catherine@corfeestone.com
• ADA and Employment Law Attorney
• (916) 487-5441
• Carmichael, CA
• Sacramento, CA
• San Fransisco, CA 
• Disclaimer: This blog is not intended to provide express or implied advice. Do not rely on it as advice and it is best to contact an ADA attorney. 

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