If you are a landlord–or plan to buy rental property–our story should scare you more than just a little, as the last thing you want is to be sued for a violation of the Americans With Disability Act which no doubt you’ve heard of.

And here’s a fact situation that is guaranteed to raise your blood pressure.

You’ve heard the term “Drive By Shooting,” where a car, building or person, is shot at by someone in a moving vehicle, making it often difficult to capture the perpetrator.

But have you ever heard of a “Drive By Lawsuit?”

Sacramento California attorney Cris Vaughan can tell you all about these suits which his law firm defends throughout the state.

“A ‘Drive-By’ lawsuit claims violations of the ADA by a person who does nothing more than drive by business without ever attempting to become a customer and there is no evidence of the individual ever being in their business.

“Business owners must hire an attorney to defend themselves where small and easily curable violations of ADA access requirements on the outside of their business that can be seen when driving by the property.

“Three law firms with less than twenty plaintiffs file the majority of the ADA cases in federal court. Twenty or more cases a month are filed using a single individual. California has a financial reward for the person who brings an ADA lawsuit, even for minor or purely technical violations, like a parking space being an inch too narrow.” Vaughan stated.

At least one individual law firm in California files more than one hundred ADA lawsuits a month using virtually identical language, changing little more than the name and address of the business in a boiler plate complaint. “In many cases, the lawsuit targets a small immigrant or minority owned business.”

Pay Up Now or Pay Thousands to a Lawyer Defending You

“The business either pays the settlement demand– frequently over $10,000–or spends thousands more fighting the lawsuit, or shutting down the business” Vaughan stated in frustration.

Unfortunately, the shakedown usually works, and it did with one of my clients, trying to sell their small motel. We were one of many victims of this incredible abuse of the well-intentioned ADA, until the Federal Courts in California and some other states put a stop to this thievery.

Never Even Set Foot on the Property

An Arizona lawyer and his wheelchair-bound client have used Google Earth to study swimming pool facilities at hotels throughout California.

The ADA requires hotels which have a swimming pool to be accessible to all guests. But how can a guest who is confined to a wheelchair get into a swimming pool?

The ADA requires hotels to install a pool lift to provide access to wheel-chair bound patrons. These lifts are easily visible on Google Earth.

Often city and county building code officers do not inform the owners of this requirement. In my town, they specifically told hotel owners that a lift was not necessary. That was bad, really bad advice.

If a wheelchair bound person checks into or tries to check into a hotel and discovers no lift at the pool, they have suffered a harm according to the ADA. Failure to have a lift is a clear violation of ADA access requirements and hotel guests would be well within their rights to file suit.

“But in these lawsuit, the plaintiff lived in Arizona, never left her home, but claimed an ADA violation because the hotel she saw on Google Earth lacked a chairlift! Her lawyer filed dozens of these questionable lawsuits in California Federal Courts against hotels all over the state!” Vaughan points out.

A Gun to Your Head

“Clients tell me ‘It feels like there’s a gun to your head. ‘Vaughan stated, adding “Many hotels simply settled these suits, paying $5,000 or more to the Arizona lawyer. But then a few attorneys who represented major hotels asked the Courts to dismiss these suits on the grounds of what is called Standing.

“That means, the plaintiff could not show that the lack of a chairlift actually harmed her, as she was never at the hotel, or in California, for that matter. But rejection of these lawsuits by the court came after many hotels just paid up.” he points out, adding, “These types of lawsuits are still going on today,” he concluded.

There is a lot more to the ADA, and next time, with Cris Vaughan we will look at common myths that could cost you big time. His website is adalegaldefense.com and he’s also on You Tube. By spending time there you will learn a lot and just maybe, keep yourself out of ADA lawsuit land.

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

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My paralegal, Anne, buzzed me: “You have two readers on the phone who work at a pizza restaurant and found you after reading your article about the near-mutiny at the seafood restaurant where customers considered themselves victims of a bait and switch. They said their issue is similar to the movie, “Honey, I Shrunk the Kids.”

– Put them though.

In a moment I was speaking with “Edie” and “Floyd” who are both enrolled in an MBA program and work part-time at a chain “casual-dining” restaurant that features steaks and seafood but specializes in pizza. It has over 50 locations in several states and at major airports. I will simply refer to their employer as the “Restaurant.”

“I am curious about the connection between your call and the hysterical “Honey, I Shrunk the Kids” films. Could you explain?”

Edie replied, with a question of her own. “Mr. Beaver, if you came to our restaurant, and as I am handing you the menu, I say, ‘It is impossible to read without using your cell phone QR code scanner because the font size is too small,’ what would you say or do?”

“I would ask for a readable menu. Also I would have you tell me what is the crazy idea with a menu that even people with normal vision can’t read? If you could not produce a proper menu, I would leave.”

Floyd then said, “That’s what is happening at our restaurant and many more in the chain. Management is trying to save money on printing menus, and this is upsetting so many people! Customers are walking out and we are losing tip money, obviously.

“Also, I may be wrong on this, but the ADA – The Americans with Disabilities Act – says that places like restaurants must be accessible to the disabled. A menu that no one can read without some optical assistance strikes me as a possible ADA violation which I mentioned to our manager, but she blew it off!”

They wanted to know if I could help. I would try, but I needed to verify this myself. As we have one of their restaurants in my town, I took Anne there for a late lunch.

As predicted, we were given unreadable menus. If you have ever had a problem with your computer display suddenly shrinking so small that you had to literally touch the screen with your nose to read anything, that should give you a good idea of just how small everything appeared on the menu.

Using her QR code reader was a frustrating experience. We could see why – especially older patrons – would walk out. We ordered the same things that we had there before, but felt cheated by not being able to see what new additions they had on the menu. Our food was acceptable but the art of cooking fish — salmon in particular — escaped their chef, as Anne’s was dry and overcooked.

Comments from Restaurant Owners and Menu Designers

I ran this bizarre “Honey I shrunk the Menu” situation by PR reps at several chain restaurants that were similar to the Restaurant, as well as chefs and menu designers.

The comments ranged from, “Are they trying to go out of business?” to “Doesn’t anyone there recognize the vital role played by your menu?”

I reached the CEO of a New York Italian Style restaurant who said, “This kind of slap-in-the-face of your guests hurts all restaurants. I would be curious as to what they tell you when you speak with them.”

Response from the Restaurant

I e-mailed corporate and in less than 24 hours heard back from “Antoine” who stated:

“Thank you for reaching out regarding your menu experience at our Bakersfield location. We regularly test new menu formats to understand guest feedback and ensure we are creating the best possible Restaurant experience. This menu format was designed to give us flexibility during a time of rapid change in the marketplace.

“We recognize that not all guests responded favorably to the temporary menu and we will be returning to our traditional printed menus in early October.”

Have they violated the ADA?

The Americans with Disabilities Act (ADA) was signed into law on July 26, 1990. Its overall purpose is to make American society more accessible to people with disabilities.

Title III of the ADA deals with public accommodations, which includes restaurants.

The question here is, “Would the fact that no one can read the menu without electronic or optical assistance (magnifying glass) create an ADA violation?”

I ran this question by Southern California ADA Defense attorney John Coates:

“What they are doing is making the menu inaccessible to everyone, not just the disabled.

“This was a terrible business decision and exposes them to a risk of being sued under the ADA. How high a risk is up for debate, but they should discard it at once. You just do not treat your customers this way!”

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

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“Rex,” the hiring manager of a Midwest financial services firm, phoned asking if I had a minute to discuss something that he had never before faced:

“How do I respond to a job applicant who feels that, if hired, she has a right to dictate management’s manner of criticism or discipline? Mr. Beaver, have you ever heard of such a request?”

Neither I nor any of the HR and employment law attorneys I ran this question by had, but all raised serious doubts about the underlying intention – if any – this job applicant had in mind.

Her name is “Audrey” 22 years of age and about to graduate from a well-known Midwest university with a degree in finance.

“Is she not-so-secretly hoping to file a suit against your firm?” was the question that each HR and labor lawyer I spoke with raised.

“Her school has been a consistent source of excellent employees, and on paper she seems a perfect fit. But I have to admit something just doesn’t seem right,” Rex said, adding, perhaps there is nothing to worry about, but if she agrees, would you chat with her and find out why she has these concerns?”

I agreed and within minutes I was in a Zoom video call with an intelligent, professionally dressed, polite young lady whose attitude checks all the boxes.

“So, Audrey, tell me about yourself and what led to this very unique request? I have to be up-front, it makes you appear overly sensitive, so there must be a logical explanation.

“Can you help me understand what lies behind that request to limit the kinds of criticism a manager might make of you?”

That question opened a door into Audrey’s home life which, I would learn, had a profound impact on the way she was affected by hearing criticism – of anyone.

“When my parents would argue – usually over something Dad messed up – Mom didn’t address the issues, rather, she berated him without mercy and used a sarcastic, horrible put down tone of voice. Dad loved Mom, and we always heard him say how much he adored her. But it was a one-way street, partly because of her cultural background.

“Growing up, seeing your father cry after one of Mom’s lectures, had a deep impact on me and my brother. We promised each other that we would never treat an employee, co-worker or spouse that way.

“If Dad was upset over anything, he calmly set out the issues and asked for Mom’s help in resolving the matter. His tone of voice was always warm and respectful. He never put her down or was sarcastic.

“Dad died last year. Despite the way Mom treated him, in our last conversation before he died, he said, ‘I have been so blessed married to your mother.’

“I cried for weeks afterwards, Mr. Beaver, learning a powerful lesson from my father about not carrying a grudge and being able to pardon those closest to us.”

Warned that a Manager Would Open Old Wounds

Several of Audrey’s friends from school have been hired by this company and all agree that the manager was competent, but “sounds like the way you describe your home life – hurtful and sarcastic when giving criticism.”

They suggested that she look elsewhere for employment as this guy is not going to change his management style.

“But I need the job and was hoping to reach an agreement as to the manner of discipline,” she explained.

Analysis from a Labor Attorney

New York-based labor attorney “RJ” provided this analysis and recommendations:

(1) The question from a legal perspective boils down to: “Is she asking for an accommodation that she would otherwise be entitled to under the ADA (The Americans with Disabilities Act) due to her family experiences?”

(2) The entire area of emotional and psychological issues, as protected by the ADA, is an absolute, confusing swamp.

(3) In essence she is saying the equivalent of, “I have a physical disability and need to have that accommodated.”

(4) But the question is (a) is she disabled? And (b) is it reasonable to accommodate her in this regard? The answer to both questions is “no.”

(5) From a legal perspective, she does not have a disability, and it is not reasonable to require management to change its style to accommodate this applicant who grew up in a disfavored family life.

“I would tell Audrey to take the advice of her friends and look for a job elsewhere,” my New York colleague recommended. Starting out in life after college the last thing she needs is to tangle with lawyers and the ADA.”

Good, common sense advice.

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

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If I told you, “Some law school students are cheating — and are even helped by their law schools,” you’d probably think, “No way, I can’t believe that.”

Not only has this been going on for years, but, as you will see, it directly impacts law firms — large and small — and clients, who can easily be paying a premium for an honor student who is actually a dishonor.

How Cheating Spreads at Law Schools (paywall) was the headline on an excellent Wall Street Journal opinion article, by Jillian Lederman, that ran June 5.

As this column has put me in touch with law school faculty over the years, the content of Lederman’s opinion piece wasn’t news to me. This type of cheating has been a dirty, well-kept secret at many law schools, upsetting countless law profs.

After that article ran, my office received phone calls from several of the law firms and attorneys who have been helpful to this column.

Their reasons for calling, summed up in one sentence: Some of the lawyers we hired had grades that put them near the top of their class, but when it came to doing actual legal work, things just did not correlate with their excellent grades, and we just could not figure out why.

Getting more time to take written exams invites fraud

Law students about to take their first exam are usually anxious and often worried. If a first-year student isn’t nervous, then something’s wrong, as law school is not a walk in the park.

Now, what would you be asking yourself if about a third of your first-year class members didn’t show up for the final exam? That’s what a Pepperdine law student noticed in the summer of 2023.

Were they just running late? Chickened out? No. As many as 30 students were in a different room, getting extra time because of the Americans With Disabilities Act, which, as Lederman noted in her piece, requires schools to accommodate “students with conditions that impair ‘major life activities’ such as learning, reading and concentrating.”

This can translate into giving law students who claim a disability up to four extra hours to complete a test.

Lederman writes in her article that multiple students said that Pepperdine’s administration confirmed at a town hall last year that “more than a third of the school’s law students receive testing accommodations, the most common of which is extended time.” The school also noted that the prevalence of accommodations is comparable to that at other law schools.

Many people look at such high numbers of students claiming an ADA impairment and four words come to mind: That sounds like cheating.

What else could it be? One of my law school professor friends noted that cheating is the only possible explanation.

For the record, no one is criticizing students who need extra time for tests because of legitimate learning disabilities. The issue here is students who don’t need extra time but profess under false pretenses that they do need it so they can perform better than they would otherwise.

Test accommodations arrived in 1990

ADA accommodations became a requirement in 1990, and thorough medical/psychological evaluations were required to justify allowing more time to take tests.

While many students do suffer from certain disorders, such as PTSD, ADHD, anxiety and others, it is possible to fake impairments — and there are years of research proving it. (Check out this article from NBC News to read more about that.)

A Loyola law professor in Los Angeles, who spoke with me on condition of anonymity because faculty is not authorized to speak for Loyola, said, “Something is wrong here, (as more students) across the country are increasingly seeking ADA accommodations. Are law schools admitting students and graduating future lawyers who lack the ability, in the real world, to function as lawyers?

“Or, do we have a Varsity Blues situation where families with money pay a psychologist to give them a report that will justify the student’s need for more time to take exams? The answer is obvious. Students are cheating on a massive scale, and in my experience, school administrators are fully aware.”

The consequences of this cheating affect us all

As law students are evaluated on a competitive curve, top grades have real-world consequences.

For instance, top students can get scholarships, score a spot on the school’s law review, receive job offers from major law firms, land coveted clerkships with federal judges and can be paid far more than other first-year lawyers. The cost of those higher salaries is passed on to their clients.

You might be thinking, “During the job interview, why not just ask if they ever received an accommodation in law school (or anywhere) that gave them longer time on exams?”

Southern California-based labor attorney Daniel Klingenberger says that under the ADA, “the hiring manager should not ask that question, or any similar questions about a history of having a disability. The purpose of the ADA is to ensure that qualified individuals with disabilities have an equal opportunity in the workplace.”

Dennis Beaver Practices law in Bakersfield and welcomes comments and questions from readers,
which may be faxed to (661) 323-7993,
or e-mailed to Lagombeaver1 – at – Gmail.com.

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“I inherited a commercial rental property recently that was built in the 1940’s. I understand that the Americans with Disability Act requires accessibility, but all the doorways to these shops are too narrow to allow someone in a wheelchair to enter.

“Is it true that because it was built years before the ADA became law, I am ‘grand-fathered’ in, and do not have to meet current accessibility requirements? A contractor told me that to meet ADA requirements, I would have to tear down and rebuild as there is no other way. So, am I safe in doing nothing?”

Commonly Held Myths About the ADA

Is there such a thing as being ‘grand-fathered’ in to the ADA, allowing a property owner a free-pass for accessibility compliance? We put our reader’s question to Sacramento, California ADA attorney Chris Vaughan.

“This is a question I get asked often,” Vaughan said. “There is no provision which allows avoiding compliance since buildings are not ‘grandfathered,’ he stated, adding, “There may be some differences in how the law is applied to a building that existed before the ADA became law, but there is no way to avoid improving access.”

It is one of several myths about the ADA’s accessibility requirements,” he says, and points out the importance of the ADA to our country as a whole.

“Since its becoming law in January of 1990, the ADA established comprehensive protection for people with a variety of disabilities and has sought to remove barriers to full participation in all that society has to offer. It has been a highly successful tool in the reduction of discrimination against the disabled. From the day it went into effect, any business or property open to the public was required to meet ADA accessibility requirements.”

Vaughan outlined some of the commonly held myths about the ADA which also has versions in every state.

(1) Since the property has been in existence thirty or more years, I am excused from making alterations necessary to make it meet current disabled access requirements.

“Generally speaking, a building existing when the ADA went into effect does not have to strictly comply with its requirements if to do so would require an unusual expense or be unusually difficult. The rules must be complied with if readily achievable to do so.”

He was quick to add, “But if you cannot strictly comply, you still must improve the property as much as you can to provide disabled access, and this might include alternative compliance or facilitation when strict compliance cannot be achieved.

“An example would be a vendor who cannot provide access to the interior of its facility might comply with the law by having curbside service in some circumstances. The whole idea is to make your property accessible through other means.”

(2) My lease says the tenant is responsible for ADA so I do not have any liability.

“Under Federal ADA law, both tenant and landlord are equally responsible for compliance. However, liability between them can be assigned or allocated in the lease. They can agree who is responsible for what.

“For example, the lease could specify that while the tenants occupy the premises, they are required to make any changes necessary to bring the property into ADA compliance.”

I asked, “But what if both landlord and tenant are sued for a violation of the ADA? If the lease makes it the tenant’s obligation to comply with the ADA, will this allow the landlord to get out of the lawsuit?

“No,” he replied, “lease provisions–who is responsible for what–can’t be used as a defense against the person who filed suit for a violation of the ADA. Both tenant and landlord are still legally responsible, even though they have an agreement between themselves.”

(2) If I fix it, I don’t have to pay the person who sued me anything.

(3) “Under both Federal and State law (which will vary depending on the state) damages are still collectable regardless of fixing the access issue, and can easily run into the thousands of dollars.

“In fact, yearly, many small business owners are forced to close their doors permanently, losing their livelihood, frequently where the access violation was minor and easily remedied.”

(4) It’s not a big deal if I wait until I’m sued to do something.

“The only way to avoid being sued is to fix the property. If you wait until you are sued, you will have to pay to fix it and pay your attorney, the plaintiff’s attorney, and the plaintiff,” he observes.

So, how can you learn what’s wrong with your property?

“Obtain an evaluation from a Certified Access Specialist and do it before you are sued,” Vaughan concludes.

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

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