Business Owners Fight ADA Suits

Photo Adam Gillitt Sandwich Board owner Michael Lee.

Business Owners Fight ADA Suits

Two Alameda business owners are in a legal fight against a serial lawsuit filer who is taking advantage of a legal loophole.

Michael Lee, owner of Sandwich Board at 2412 Webb Ave., and Mark Rodgers, owner of Lola’s Chicken Shack at 1417 Park St., are two out of dozens of business owners along Park Street served an American with Disabilities Act (ADA) lawsuit by Orlando Garcia. Garcia has a disability and uses a wheelchair. Unlike most of the other businesses served a lawsuit by Garcia, Lee and Rodgers are not willing to settle.

“It’s extortion,” said Rodgers. “I don’t think anybody who wrote the law intended for this to happen.”

Both men were served their lawsuits in July. In the complaint, Garcia’s accused Lola’s Chicken Shack’s slope entrance of being too high and not offering an ADA-compliant table outside. The Sandwich Board was accused of having restrictive access to its restaurant due to a table and two chairs in the front and the payment counter being too high. Both men made the appropriate renovations to remedy these complaints. They also hired a California Access Specialist to ensure they met all ADA regulations. Even though both businesses are now ADA compliant, the suits against them are still pending.

“It because they don’t care. They’re a bunch of crooks,” said Lee. “I think this is how his lawyer makes his money.”

Rodgers said that a lawsuit was unnecessary and had he been told he wasn’t ADA compliant he would have made the appropriate changes.

Dennis Price, Garcia’s ADA attorney, said without serial litigation, there would be no way of ensuring businesses are compliant. Price said tester plaintiffs has been around since the 1960s and it is no different than black plaintiffs suing for civil right violations.

“ADA has been around for 30 years,” said Price, an attorney for San Diego-based Potter Handy, LLP. “Every business had 30 years to be compliant.”

The ADA was signed into law in 1990. Like the 1964 Civil Rights Act, which prohibits discrimination based on race color, religion, sex, or national origin; the ADA prohibits discrimination against people with disabilities. More specifically, the law is designed to guarantee that people with disabilities have the same opportunities as everyone else to participate and enjoy employment opportunities, to purchase goods and services and to participate in state and local government programs and services.

Price calls Garcia an “active ADA tester.” Garcia, a Santa Monica resident, travels to businesses throughout the state searching for ADA compliance violations. He has filed more than 700 ADA lawsuits in Federal Court, including more than 100 lawsuits this year. He has filed lawsuits in San Francisco, Oakland and Berkeley.

ADA defense attorney Catherine Corfee, Esq. believes Garcia’s lawsuit should be thrown because did not show he wanted to purchase any goods or services.

“The ADA is supposed to allow people with disabilities to have full and equal enjoyment of services,” said Corfee, who is Lee and Rodgers’ attorney. “The ADA protects those only who want to engage in the service.”

To get Garcia’s lawsuit thrown out Corfee filed a motion with Federal Senior District Judge Susan Illston of the Northern District of California on her clients’ behalf to label Garcia a vexatious litigant. A vexatious litigant is someone who persistently begins legal actions but doesn’t have sufficient grounds for doing so. Lee’s first vexatious litigant motion was denied by Illston, but they filed a reconsider motion. Corfee believes getting the motion approved is a long shot.

“Judges are afraid because they don’t want to be perceived as anti-Civil Rights,” said Corfee.

Rodgers’ motion will be decided soon. Illston will also declare judgement on Garcia’s lawsuits. Corfee said Illston wants her clients to settle.

Lee and Rodgers have spent a lot of money fighting this lawsuit. In fact, between attorney fees and building renovations both say it would have been cheaper to settle. Settlements for other business range from $14,000 to $25,000, which include Garcia’s attorney fees.

“For me it’s a matter of principle,” said Rodgers. “If somebody doesn’t stop and say something it’s going to go on and on.”

Both said the lawsuits have affected them personally. “I get depressed, anxiety and loss of appetite,” said Lee. “I cannot fight this for too long. I might have to settle.”

Lee started a GoFundMe campaign to help cover his mounting legal fees. To donate, visit