In the days following Governor Gavin Newsom’s order to shut down bars and dining areas to the public, a handful of restaurant and bar owners in eastern San Diego County received more bad news; lawsuits for failing to provide access for those with disabilities.
Scott Schuzta has filed more than fifty Americans With Disability Act (ADA) lawsuits against San Diego County businesses in the past several years. In mid-March, as restaurants and bars were laying off workers and embracing for vanishing income, Schutza, represented by ADA litigation experts, Potter Handy, filed federal lawsuits against seven businesses, five of which are service-related, all located within miles of one another.
The lawsuits, all filed by Potter Handy, a Kearny Mesa law firm that specializes in ADA litigation in California, all have similar allegations.
During a February visit to the Coo Coo Club, a self-proclaimed “dive bar” in Lakeside, Schutza found a lack of “dining surfaces” inside the bar. On that visit, Schutza also noted a restricted path to the restrooms, non-conforming disabled parking spaces outside, and non-accessible sales counters.
Three miles from the Coo Coo Club, at Albert’s Fresh Mexican Food, also during a February 2020 visit, Schutza discovered similar violations.
Schutza also traveled to Marieta’s Restaurant in Santee that same month, eight miles from Albert’s Fresh Mexican Food, with, according to the federal complaint, “the intention to avail himself of its goods, motivated in part to determine if the defendants comply with the disability access laws.”
As was the case with the Coo Coo Club and Albert’s, Schutza discovered inadequate pathways inside the restaurant for those in wheelchairs, as well as a lack of accessible dining surfaces.
Just a few miles away, at Taste of Himalayas in El Cajon, Schutza found unaccessible restrooms, narrow pathways inside the restaurant, and a lack of dining areas for those in wheelchairs.
For years, businesses throughout San Diego County and across the state have seen a rise in the number of ADA lawsuits. Jot Condie is president and CEO of the California Restaurant Association. Condie says that while ensuring the disabled have proper access is vital, a few players and law firms have used the law for the sole purpose of making money.
“There’s a number of unscrupulous lawyers who have created a racket for the most part, and they are not serving the purpose of those who have been denied access,” Condie told NBC 7 Investigates in a March interview.
Added Condie, “Their business is to go out and find sometimes inadvertent technical violations of the ADA, where it’s not intentional, where a door handle is an inch off or the mirror is not at the proper height, and they find these minor violations that sort of don’t even necessarily deny access but they are technical and they extort money from businesses.”
According to court records, since January 2019, Schutza filed 44 federal lawsuits against businesses, alleging that they are in violation of the ADA.
Even in times when the economy is booming, Condie says the lawsuits can be the “death blow” for many restaurants and bars.
“They are doing a disservice to the ADA, they are doing a disservice to the disabled community, and in many cases business owners that try to fight these, many of them go out of business because they go broke trying to defend themselves,” Condie said.
Bars and restaurants throughout California have been forced to cordon off dining areas, and bars such as Joe Maula’s Coo Coo Club in Lakeside, have been ordered shut due to the spread of the coronavirus. Since the state’s order has restricted dining-in, Maula has had to lay off staff and hopes that his business can survive the social distancing guidelines. As for the lawsuits, Maula feels they are misguided.
“[It] is especially ironic that they would sue a small business, one that is owned by a disabled person,” said Maula.
“These are difficult and uncertain times. It is unfathomable that these people are suing small businesses. It is currently a matter of survival, both in terms of life and income, for everyone. Small businesses are the backbone of the economy and these continued lawsuits throughout the county need to be stopped."
But Schutza’s longtime attorney and founder of Potter Handy, one of California’s largest ADA litigators, Russel Handy says Schutza is doing the community and those disabled justice.
“Mr. Schutza, a profoundly disabled paraplegic, has been active for a number of years in finding law-breaking businesses and hauling them before the courts to answer for violating disability civil rights,” wrote Handy in an email to NBC 7 Investigates in regards to the recent spate of lawsuits.
“He believes—and our firm certainly supports that belief—that disability civil rights are of paramount importance and deserve to be enforced...nonetheless, if a business is open and actively discriminating against persons with disabilities, we see no reason that a law-breaking business would get a pass to discriminate or mistreat persons with disabilities, merely because our entire society is struggling with the effect of a global pandemic.”
Handy says businesses have resources available to help them abide by the law and to ensure adequate access is provided.
“Businesses have had an affirmative obligation to assess their facilities and remove unlawful barriers for three decades,” said Handy. “There are numerous resources available to businesses to do this. It is exceedingly clear that any business that wants to comply with the ADA has all the resources and information available to do so and has for years.”
When asked whether his firm is considering the difficult economic times when filing the lawsuits, Handy stated that he and his firm are “not unmindful of the impact that this global slowdown is having and will continue to have on businesses, especially small businesses.”
Added Handy, “While it is undeniably clear that injunctions against unlawful behavior and the payment of penalties are critical components in ensuring compliance, we have certainly factored the current economic condition into our settlement positions and will continue to do so.”