More ADA lawsuits slam Richmond District businesses

by Thomas K. Pendergast

Two more restaurants on Clement Street face lawsuits from an attorney familiar to many local merchants, because, both proprietors say, they did not realize their establishments had to be in compliance with the federal Americans with Disabilities Act (ADA).

Hamburger Haven, located at Ninth Avenue and Clement Street, and Bill's Place, at 24th Avenue and Clement Street, are both trying to figure how to respond to lawsuits filed against them by Thomas Frankovich, a lawyer who has brought numerous ADA-violation lawsuits against San Francisco businesses in recent years. His legal actions have been largely responsible for the recent closings of Thidwick Books and the Video Cafe.

Some of the people he has sued call his actions "drive-by lawsuits" and "legalized extortion."

"We're just going to let the attorneys handle this matter. There's not too much you can really fight on this issue and I don't want to talk too much about the case," says Roozbeh Falahati, speaking on behalf of his father, an immigrant who owns the Hamburger Haven business. "We're just going to settle and move on."

He says at this point he is not sure if the lawsuit threatens his father's business.

"It depends on how the landlord proceeds," he says. "As long as you have a partner businesses will survive. But, if the landlord follows the lease agreement, which pushes all of the burden onto the tenant, then you look at a cost-benefit analysis. Is it worth it to stay in business?"

When interviewed in January, 2011, Frankovich said that whatever agreement the landlord and tenant might have was not his concern.

"The City doesn't have to form a department to go out and enforce these things, so I do it on my dime and the taxpayers and baby-boomers should all be happy," Frankovich added. "Who are the only unhappy people? The only unhappy people are the landlord and tenant scofflaws who have been breaking the laws for 10 years and got caught."

Falahati says his father had no idea that there was a potential for a lawsuit.

"I've spoken to many other small business owners in this area … and they've all had the same story. They're shocked, surprised, bewildered, they have no idea that they were non-compliant," Falahati said. "If someone would inform small business owners about that, they would do something to act upon that issue. The problem is there's just a complete lack of communication between city officials and small business owners and landlords and their tenants."

More than a year ago at a press conference, David Chiu, president of the San Francisco Board of Supervisors - who once served on the San Francisco Small Business Commission - stood next to Supervisor Carmen Chu and called for action to address the rash of ADA lawsuits over that past few years.

"Three years ago the Small Business Commission convened a number of hearings and started putting together the different parts of what we needed as a citywide response to this issue. And, it was predicted three years ago that if we didn't get a handle on this there would be a rash, an epidemic, of these types of drive-by lawsuits," Chiu said at the press conference. "Unfortunately, here we are today with stories from the Mission, with stories from the Sunset, with stories from the Richmond and throughout the City of these local business folks, who are creating jobs and keeping our families afloat here in San Francisco, who continue to be victimized by these individuals."

At that same press conference, Susan Mizner, director at the Mayor's Office on Disabilities, said there is a law, SB1608, that offers a way out for small business owners if they act proactively and preemptively.

"The state has certified inspectors who are experts on disability access laws. They are called certified access specialists," Mizner said. "If a business hires a certified access specialist to come in and survey your location, you get a list of what you need to get fixed in order to comply with disability access laws. The certified access specialist is also supposed to be able to tell you what may be technically unfeasible to fix."

Regina Dick-Endrizzi is the executive director of the city's Office of Small Business. She says the City is working to educate the community through workshops on ADA laws and certified access specialists. Workshops are held at meetings of the more active merchant groups and associations.

She also mentions that the San Francisco Bar Association offers small business owners a 30-minute consultation with an attorney about dealing with ADA lawsuits for $35.

"I would like to do more but I have to say it's a collective effort with architects, contractors … everybody who deals with this needs to be responsible for informing businesses," Dick-Endrizzi said. "What's tricky is our building department enforces California building codes but the federal ADA law is a civil rights law that has some building code requirements around it. The federal program didn't put any inspection mechanism in place."

Thus, enforcement of ADA law ends up in the civil courts.

Community outreach to alert owners about the threat of lawsuits is one of the only real options for city and county governments at this time. Dick-Endrizzi says this depends on active merchant associations and the participation of proprietors.

Don Durham, owner of Bill's Place, says he does not belong to his local merchants association and he has been working at the restaurant since 1969, though the restaurant itself has been on Clement Street, near 24th Avenue, since 1959. He also says he had no idea his business had to be ADA compliant.

"I thought that this would happen, or you had to do this, if you remodel," says Durham. "I never remodeled. That's why I was so shocked when it happened. If I'd known I could have started doing some of it a little at a time and not had a large expense at once. It's really hard for a small businessman to do this. Business is tough already."

Durham rates the City's efforts to help warn small business owners as "terrible."

"I think it's very sad that it happens this way," he says. "I hope I can last … I've been here for a long time."

A proposed city ordinance, sponsored by Supervisor Chiu, would go into effect on Oct. 1, 2012, if passed and signed. It would require all commercial landlords, prior to leasing their property to a small business tenant, to bring the ground floor entrance or exit of a building to be leased into compliance with ADA laws, notify the tenants of potential liabilities for failure to comply, and include respective ADA obligations in the lease.

There is also a new program currently under development.

Holly Lung, a program manager for economic development at the city's Office of Economic and Workforce Development, is currently making plans to use $45,000 worth of funds from a federal community development block grant to get the word out.

Lung said the basic plan is to hire a private building design company to consult with and assist small businesses in complying with ADA requirements.

City representatives will target commercial corridors, probably starting with 12 low-income neighborhoods throughout the City, and go door-to-door, contacting business owners to let them know what they need to do. She said they are probably going to be handing out pamphlets and perhaps a checklist of things to fix that are "readily fixable."

"This is to educate them," says Lung. "Many of them speak English as a second language and they may be afraid of the government. So, they end up just paying off. We want to empower them so they don't feel afraid."