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Limited Access

The Americans with Disabilities Act intends to help people. But for some it's a major headache.



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And it's spurred legislation. Last year, San Francisco Supervisor David Chiu introduced a proposal to prioritize permits for accessibility improvements and create incentives for landlords to add accessibility features in the permanent structures of their buildings. In May, the California Senate passed a bill that would help mitigate the effect of ADA litigation, by banning "demand for money" letters — meaning a shakedown letter that a lawyer might send to a non-compliant mom-and-pop, requesting Unruh Civil Rights damages and exorbitant lawyer's fees.

If it's hard for a century-old institution like First Presbyterian Church to keep track of an ever-changing byzantine law, it's doubly or triply hard for a non-English-speaking restaurateur.

Wong said that because her mother only speaks Cantonese and doesn't use the Internet, she's the one deputized to interpret laws and deal with city bureaucrats. When she found out about Dytch's complaint, she immediately called other friends in the restaurant business, to see if they were aware of current ADA standards. It turned out that few, if any, were conversant in the law.

"No business owner I've spoken to has ever wanted to discriminate against anyone who's handicapped," Wong said. "It's that they don't know [the rules]."

Albany landlord Al Satake concurs. Satake, who owns the building that houses Christopher's Nothing Fancy Cafe on San Pablo Avenue, found himself embroiled in a legal battle with Dytch three years ago, even though he'd passed all of his city inspections. He wound up settling for $25,000, then making the $75,000 in construction improvements that Dytch and Stewart called for. "The slope from the entrance was off about an inch," Satake said. Dytch also found fault with the door width of the restaurant's accessible restroom, so Satake had to move a few walls, reinstall the toilets, and shift the sewer lines in order to adjust it. "This took us by surprise," he said. "The law is unfair in that it penalizes people who thought they were in compliance. Then you have these vultures coming down."

It turned out there were several things wrong with Yuet Foo Restaurant, too, although they wouldn't be obvious to a layperson — it certainly looks accessible from the outside, with a wide doorway set right off the street, handrails in the restrooms, and a seemingly ample disabled parking space. But closer inspection with a level and PSI measuring device revealed several infractions. The pavement of the accessible parking space is too uneven — federal law mandates that its surface slope not exceed that of the parking lot by more than 2 percent. The front door pressure is too strong, since the door closes in two seconds, rather than the three required for a wheelchair to get through. There are flowerpots in the vestibule that reduce a wheelchair's potential path of travel. The sconces out front hang too low, at 71 inches from the ground rather than the required 80. The list goes on. And on.

Wong is still assessing what's readily achievable at Yuet Foo. "If we completed the whole list, it would cost more than $20,000 when you include the down time," she said. "[Stewart's] disability expert said the [bathroom] doorway is too narrow. It's 31 1/4 inches and it's supposed to be 32." But fixing it would require her to cut into the wall, which would disrupt business, she said. "You can't have people hammering and cutting into drywall while customers are eating."

The fact that so many restaurants have similar structural flaws makes them sitting ducks for litigation. Stewart, who works out of an office in Clayton and advertises himself, specifically, as an "access disability discrimination lawyer," readily admits that restaurants account for the bulk of his business. They're the buildings that require the most accessible features, after all. "What needs to be accessible in a jewelry shop?" Stewart asked in a recent phone interview. "You walk in, you look at stuff, you either buy something, or you leave. In a restaurant, you have to park, walk in, go down the hallway, use the bathroom." He paused. 'The worst thing is you have to pee and you can't — so what are you going to do?"

Stewart works on volume, suing many restaurants for a relatively low fee — he says it's about a fourth of what many of his peers make. San Rafael attorney Bruce Napell, who settled two lawsuits with Stewart, estimates he charges between $3,500 and $5,000 per case, which means a $9,000 loss for the restaurant when you include the $4,000 statutory damages, plus whatever it costs to make the necessary repairs. That's much lower than what it would cost to fight a protracted court battle, attorneys say, which is why most restaurants just go right to the bargaining table. Stewart estimates that the vast majority of cases wind up in settlements. "I don't know if any of them go to trial," he said. "Usually if it's a bad case, the judge kicks it out. But if you're smart, you don't file bad cases."

It's certainly a point of contention whether Stewart is doing god's work, or profiting from a somewhat lucrative racket, and even he'll acknowledge the ambiguity. "There's money and there's goodness — there's kind of both," he said. To their credit, Stewart and his clients have made some progress toward the goal of grand-scale ADA compliance. (Dytch didn't respond to requests for comment.) Each settlement they make calls for injunctive relief, which means the defendant ultimately has to rectify the problem. Stewart argues that the prevalence of such lawsuits also pressures other business owners to make ADA renovations preemptively, lest they meet the same fate.

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