Lawsuit flurry hitting San Mateo businesses

Downtown San Mateo shops are seeing a rise in Americans with Disabilities Act lawsuit allegations, putting business owners in a bind as they decide to either settle for thousands in fees or contest the action in court.

“It does feel like something is wrong here, and this is not right. We are being taken advantage of,” said Rafael Salah, owner of Deja Vu Organic Juice Bar.

Salah owns Deja Vu at 314 S. B St. and another location on Burlingame Avenue. Deja Vu is one of many San Mateo businesses receiving lawsuits alleging parts of their business access or seating currently violates the Americans with Disabilities Act. The federal law protects access to public spaces for people with disabilities. People who have receive the lawsuits have 21 days to respond and usually either settle through a compliance process or contest it in court.

The ADA lawsuit is Salah’s second, as he recently settled a case involving his Burlingame location for around $10,000 and additional lawyer fees. He was shocked when he first got the lawsuit, as were many other businesses in Burlingame. He went through the settlement process and felt there was not a lot he could do, despite the unfairness of the situation.

“That really hurt me, and it really hurt a lot of business owners in Burlingame,” Salah said.

After getting a second lawsuit for his San Mateo location, he is worried lawsuits will continue, forcing him to bear the costs. He received his lawsuit letter for his San Mateo location three weeks ago alleging ADA violations. However, he does not plan to settle this time around and plans to fight it in court. He has hired a lawyer in Los Angeles who has won cases before in similar lawsuit situations.

Salah said his lawsuit alleges temporary outside seating outside Deja Vu violated ADA rules. He no longer has outdoor seating and is now back to all indoor seating. He said the city placed the temporary seating outside, one of the reasons he is asking the city for any help.

“During the pandemic, the city came and put outside seating, but it’s not ADA approved because it’s temporary. When this person came to our town during this time, he saw all those seats were not ADA approved,” Salah said.

He wants the city of San Mateo to help businesses and residents facing lawsuits who are an integral part of the community.

“This is not even our fault. The city is putting out temporary [seating] because of the condition this whole country is in, and you are taking advantage of that, and who’s paying the price, we are,” Salah said.

City response

The city noted in an updated statement: We sympathize that these are very challenges times for local businesses, which is part of the reason the city created an outdoor dining program. Our program allows local businesses to place outdoor seating themselves, but it explicitly requires businesses to ensure their seating is ADA compliant. The city has not put out any outdoor seating for local businesses as part of the program.

In an email statement, San Mateo Mayor Rick Bonilla said many local businesses are still reeling from the pandemic’s financial impacts. Bonilla said the city would assist as it could, noting the ADA allegations related to federal law.

“As a city, while we are unable to provide legal advice or representation to private businesses, we do encourage any business that has received this type of allegation to respond to the complaint and hire professional counsel. We are closely monitoring the trend of ADA litigation in the region and how businesses are responding to these complaints, and we will continue to work with our local business organizations on efforts to educate business owners about these issues,” Bonilla said.

Salah’s San Mateo shop opened last year, and the Burlingame location nine years ago, a father-and-son business. A lawsuit during difficult pandemic times has worsened the situation, particularly during winter and an omicron variant surge. His business slowed during COVID, and he lost more than half his business during the pandemic. While it has improved recently, foot traffic has not returned to pre-pandemic levels. One week can be busy, followed by uncertain dead periods.

“It’s been tough overall. It’s been a wave, up and down, and it’s not stable at all,” he said.

Salah said he had an ADA expert come in and examine his place, who determined he was compliant. He urged business owners to organize to fight back, and he is communicating with owners throughout the Peninsula to try to work together to fight against the lawsuits.

“Every week we pass, we see new information come to light. We see more support come from cities or the mayor. So, it’s sparking up something. I’m waiting to see the fire,” Salah said.

Attorney perspective

Attorney Dennis Price with Potter Handy, LLP, a law firm that has filed cases on behalf of Brian Whitaker, the plaintiff in the Salah civil case, said private enforcement is the only remedy to address noncompliance. Price said his client is willing to work with businesses to come into compliance. He noted it was crucial to consider the perspective of people with disabilities, like his client. Price said businesses would not have these issues if compliant with ADA laws that have been around for over 30 years.

“Whitaker’s work has made his communities materially more compliant,” Price said.

Martin Orlick is a San Francisco lawyer specializing in ADA compliance and defense, including running a team that defends business owners in ADA lawsuits and Department of Justice Proceedings. He is currently defending around eight to 10 people in San Mateo, with others in San Jose, San Francisco and the East Bay. He has seen an uptick in ADA lawsuits from San Jose to Marin County, with San Mateo, San Bruno, San Carlos and Redwood City targeted.

“Things have gotten completely out of control,” Orlick said.

Other targets

The targets are primarily restaurants with parklets, but any place with outdoor table seating is also affected. Orlick said most ADA lawsuit cases end up settling because the business owners often can’t afford to litigate. Many are struggling coming out of COVID-19 and have lost employees amid declining sales. Several Peninsula business districts were hit hard by a flurry of ADA lawsuits during the summer, with Laurel Street businesses in San Carlos and Redwood City restaurants among them.

“Businesses owners need to understand these are federal civil rights lawsuits. These are not just about tables or door handles. They are about the accessibility of their entire business,” Orlick said.

B Street Books Owner Lew Cohen has not received a letter but noted lots of businesses are receiving letters, particularly targeting restaurants with parklets. He is president of the Downtown San Mateo Association, representing downtown businesses and working toward a vibrant downtown. Many businesses have reached out to the city for help and direction, and he felt for those in a difficult situation. He hopes the city will provide support during challenging times.

“I have more questions than answers right now,” Cohen said.

curtis@smdailyjournal.com

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Note to readers: This story has been updated Friday, Jan. 14, to show a response from the city of San Mateo in regards to allegations of it putting outdoor seating out for businesses.