"Drive-By" ADA Lawsuits Shake Down Small Business Owners In California

The US of A has laws on the books known as American Disabilities Act (ADA) that mandates public businesses be accessible to people with disabilities. The law is well-intentioned and usually well implemented. However, this did not stop some vexatiously litigious people from abuising the court system and filing frivolous "drive-by" ADA lawsuits against small business owners who can't afford to fight the issue out in court, esp. during pandemic times. 

One such litigant is Potter Handy LLP, who also operates under the title "Center for Disability Access". They supposedly represented clients complained about businesses in both SF Bay Area and Greater LA Metro Area that allegedly violated ADA guidelines. Potter Handy LLP were filing up to 3 lawsuits A DAY in California's Federal District courts right up to April 2022, when they were sued by District Attorneys of both San Francisco and Los Angeles for violating California's Unfair Competition Act. 

While the civil lawsuit by the two district attorneys were dismissed in August 2022, Potter Handy LLP has mostly stopped filing lawsuits as several of the Federal judges handling the filed cases found that many of the presented facts do not add up. The pattern seems clear: there was no demand or notice of violation or request to correct before a lawsuit was filed, and the target is often (thought not always) a mom-and-pop shop (which does not have the resources of a corporate store, nor would they have lawyers on retainer to fight such).  The lawsuit claimed the plaintiff personally encountered "unlawful barriers" often something like "door handles", narrow paths, lack of ramps, inadequate handicapped parking markings, and so on. 

Most cases were settled for between 10K to 20K. 

According to a tally by Bay City News, 3142 cases (or more) in the last four years of ADA lawsuits filed in its own district handled by Potter Handy have been "resolved". And it's known that Potter Handy handled thousands of other cases in other California districts. 

Several Federal Judges have questioned whether the plaintiffs in the Potter Handy ADA cases have been truthful. One judge found that Brian Whittaker, one of Potter Handy's most prolific litigants, "traveled to Redwood City (California) for the purpose of finding business establishments to sue", not because he was visiting the area 2-3 times a month allegedly to relocate from LA. And Whittaker had sued HUNDREDS of businesses in the area. When questioned, he could not name any of the businesses despite suing and settling with hundreds of them. Note that one of the ADA claim requirements is intent to return to the business (and thus, need the barriers removed). 

Another judge, handling some of Whittaker's cases, pointed out that Whittaker took a one-day trip to San Francisco from LA, spend 2 hours moving about "to dine" or "to shop", returned home, and filed 34 lawsuits based on his experience on that one day trip to SF. This judge has also ordered the plaintiff in other Potter Handy cases before him to file additional affidavits, under penalty of perjury, for further details, and accused Potter Handy of filing "boilerplate" complaints. 

Potter Handy insists that it is protecting the rights of the clients it handled and called the civil suit brought by the district attorneys "a political stunt". 

I call it profiting off the misery of others. 

How Much Licensing Is Too Much?

When you see an injustice, what do you do about it? If you said nothing, would you at least morally support those who to decided to speak up against the injustice? Let's assume you agree...

Next, do you support state licensing of various professions? Cosmetology? Engineering? Contractors? It's all in the interest of public protection, right? These are supposed to be responsible for people's lives or money, and they should know what they're doing, so the government is supposed to license them to 1) make sure they meet requirements, like went to a certain school, and b) pay a licensing fee for the cost of this licensing program. If it operates as intended, then there is no problem. 

But when it is used indiscriminately against the citizens then there is a problem. 

Let me introduce you to two heroes who decided to speak up against such injustices. 

Mats Jarlstrom's wife got a red-light ticket while making a right turn in 2013. He investigated the signal and found that the yellow light interval can be shortened in order to elevate maximum revenue, not safety. And he has found that most jurisdictions set the yellow light interval too short and does not account for right-hand turn traffic, but only for straight-through vehicles (who can come to a stop or speed through). He started to advocate his findings by going to interviews with news stations, talking to traffic engineers, and even presented his research at a national conference of the Institute of Transportation Engineers. 

Then "Oregon State Board of Examiners for Engineering and Land Surveying" fined him $500 for "practicing engineering without a license". No, I am NOT making this up. In fact, the board wanted Mats to stop calling himself an engineer (he has a degree in electrical engineering, but he's not a licensed engineer in Oregon). And continued offense could be fined up to several thousand dollars and one year in jail, if he continued to "critique" traffic lights.  

So Mats sued the board in Federal Court for violating his first amendment rights. And he won in 2018. 

In 2020, Journal of the Institute of Transportation Engineers said Jarlstrom was right. 

This is a clear case of state licensing gone overboard. 

But let's look at another example... something a bit closer to home... hair braiding. 

In at least SEVEN states (including Oregon), hair braiders are required to have cosmetology or hairstyling licenses... even though hair braiding was not taught in cosmetology AT ALL. Keep in mind that hair braiding uses NO chemicals, dyes or colors, or other products. It is completely natural, involves no cutting or bleaching. 

Yet in multiple states, hair braiders have to obtain either cosmetology or hairstyling licenses. And these operators are forced to learn things they will NEVER use (like bleaching, or nail trimming). Keep in mind that many of these cosmetology courses require THOUSANDS of hours in training and TENS OF THOUSANDS OF DOLLARS tuition. 

In 1997, Isis Brantley was raided by multiple state agents who arrested her for braiding hair without cosmetology license in Texas. So when Texas started licensing Hair Braiding in 2007, it was supposed to be a relief, but it wasn't. The new law was attached to the existing barbering statute. Brantley's hair braiding school, in order to become legal, must be turned into a barber school including size, barber chairs, and sinks, and she must become a licensed barber instructor in order to teach. 

No, I am not making this up either. 

Fortunately, over a dozen states have separate "specialty licenses" for hair braiders, and some of them have lesser training requirements, if at all. A few hundred hours. 

So what happened to Isis Brantley? She sued the state of Texas in Federal Court, and won in 2015. Braiding instructor course was shortened to a 50-hour course (instead of 750-hour barber course) and the laws forcing barber school standards onto hair braiding schools? Unconstitutional.  And in 2015, Texas chose to deregulate hair braiding altogether. 

And indeed, in 30 states, hair braiders need NO LICENSE at all. 

So next time you think about licensing, in these tough economic times, consider this: is the licensing HELPING the public... or hurting the businesses? 

Mannatech and their fanatical following

Image via WikipediaI have no idea whether their products do any good (and in my own opinion, they do not) but that's not relevant. I've been getting into a bit of discussion with a Mr. David Maddern, who, thus far, has demonstrated a willingness to defend Mannatech, even when all evidence is against him. Instead, he finds some other excuses to continue the defenses.

By my count, Mr. Maddern had won ZERO rounds in our two months of verbal sparring. He had barely edged a tie in 2 rounds, but lost 12 rounds. So that's a complete disaster.

The discussion can be found at http://behindmlm.com/companies/mannatech/sugarmums-com-au-whos-behind-the-business/

Here's a tally of each conversation, and sort of a "tally". I am KC, and he's DM

DM: Makes wild claims of 46% commission payout and such

KC: Calls for proof

DM: Throws out Mannatech website as "proof", names MTEX stock symbol

KC: Finds stock symbol completely unimpressive, massive losses

DM: Starts blabbing about "Mannatech is NOT sugar pill", cites some unproven explanation about cell science

DM: Claims Mannatech is losing money because it's donating vitamins for third world nutritional relief

KC: Calls DM's explanation "pseudo-science", explains "dip" in stock price occured LONG before nutritional relief announcement

DM: Replies with "you don't understand us / our science", blabs more about glyconutrients

Stock and general info round goes to KC, DM abandons the field

Stolen Valor Act ruled unconstitutional: thoughts and comments

Cover via Amazon
Recently, the "Stolen Valor Act" was declared unconstitutional by two US Circuit Court of Appeals. On one hand it makes sense, on the other hand such perps *should* be punished.


So what is the Stolen Valor Act? It is a law passed in 2005 that makes it a Federal crime to impersonate a US military veteran, wearing uniforms, displaying medals s/he never received, and so on. This was named after a book "Stolen Valor", which documented many "fake" veterans used their alleged service to reduce their prison sentence, obtain government benefits, and in general benefited from the misrepresentation.

The court basically ruled that First Amendment, i.e. right to free speech, means people have the right to lie and falsely claim things.



I find such logic troubling, but I understand where they are coming from. Government cannot pick and choose which speech to protect, unless they present clear and present danger to the public. The famous example is "yelling 'fire!' in a crowded theater, thus causing panic" is NOT free speech, because people are harmed. In the "stolen valor" cases, where fake veterans wear medals they were not entitled, the judge basically said there's no "victim". The veterans who have earned such medals can't be hurt by a few fakers.

Yet I find the logic troubling. While the real vets and medal winners are not hurt, the general public is hurt, if exposed to the fakes. On the other hand, it is not like a physical hurt, but more of betrayal, being lied to, and so on.

It is basically fraud, but more of a "reputation fraud". It is like padding one's resume, claiming school degree that doesn't exist, and so on. Wearing a medal automatically gives the wearer legitimacy, and claiming legitimacy where there is none is fraud. Just like claiming degree when it doesn't exist.

Who is hurt when one impersonates law enforcement? Depends on what the fake cop did, right? Yet impersonating an officer is automatically a crime, such as wearing a fake uniform and fake badge in public. It's only NOT a crime if you fully know it's a joke, such as acting out a fantasy, or a prank.


Yet military uniform and medals are NOT considered the same as police uniform and badge, at least in this regard. Fake veterans wearing fake medals committed no crime, yet their intention is clearly to deceive those around him/her.


Why should it NOT be a crime?

Interesting: does Circuit Court of Appeals even HAVE jurisdiction regarding AZ?

According to this article, a lawyer, based on direct reading of constitution, says that ANY lawsuit involving the state as a party must be filed with the SUPREME COURT, not Court of Appeals.

"Article III, Sec. 2, clause 2 [of US Constitution] says:

 

"In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction."

How can Eric Holder, the Attorney General of the US of A, not know this part of the US Constitution?


http://www.examiner.com/x-37620-Conservative-Examiner~y2010m7d31-Explosive-new-evidence-shows-ruling-of-AZ-judge-illegal

Arizona's "Safe Streets" act, i.e. SB1070 -- safe from court challenges

Do you know why Arizon's SB1070 (and its revisions) are safe from any court challenges from ACLU and other organizations?

In order to challenge a law in court, one must demonstrate that the law in question is in conflict with an existing law, and the conflict must be resolved by the court, who then must rule. The resolution can be a full overturn, or explain that there is no conflict, or anything in between. 

The primary approach expected to challenge SB1070 is the preemption argument. American Civil Liberties Union (ACLU) and some constitution law scholars claim that Arizona law is preempted by Federal immigration laws. The US Constitution specified that only Federal government may enact and enforce immigration laws, not the states. Thus, Arizona law is preempted by the Federal laws on immigration.

The secondary approach is the rights argument, specifically 14th Amendment, in that States shall pass no law abridging any citizen or lawful resident of their Federally guaranteed rights. Their argument would be that the normal citizen or legal resident rights are violated by SB1070, and therefore SB1070 must be repealed.

http://hubpages.com/hub/Why-Court-Challenges-to-Arizona-SB1070-will-fail

RANT: Social Security was a fraud to start with!

Image via Wikipedia

Social Security is something invented in the 1930's. It was supposed to give you retirement money when you retire at age 65.

Do you have any idea what is the life expectancy of Americans in the 1930's?

62. Yep, 62. (as of 1935, 61.7 to be exact)

In other words, you are not really supposed to enjoy social security, even though you did pay for it. Yet you cannot opt out of it either.

What's more, the earliest social security law excluded almost 50% of the workforce. No domestic help, no hospital worker, no agricultural worker, and a lot more exclusions (see wikipedia)

That was 70+ years ago. Guess what the life expectancy is now? 78 (okay, 77.8, same link above, as of 2005).  Yet the retirement age, i.e. time to enjoy social security, is still 65. And the payout groups have grown steadily larger, and larger.

No wonder social security is going bankrupt. In fact, 2010 will be the first year that Social Security is actually running a deficit. It hasn't yet because it had built up a huge reserve in the past 70 years, but if the retirement age isn't adjusted upward, or the payout severely reduced, social security will cease to exist.

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• Social Security Payouts to Exceed Revenues (cbsnews.com)

Prop 8 supports... What kind of ******** argument is this?

A bunch of conservative and religious organizations have united last year to pass Proposition 8, which amended the California Constitution to define marriage is between a man and a woman, thus making "same-sex marriages" illegal. There was a huge media blitz left and right, and in the end the Right won. But one wonders why are these people so anxious to 'save' it from the same-sex couples?

If you read their brochure, you can figure out where they're coming from:

[The following is translation of a real Chinese brochure passed out during Prop 8 mania. ]

Not "legalize pot" again...

With California budget in such a mess, it's no wonder some folks with ulterior motives are trying to lobby CA to legalize marijuana for some additional revenue.

Frankly, this is going to cause so many issues, esp. with the Federal government (esp. the DEA, among others) that it's automatically a non-starter.

However, I may consider voting for it given that following condition(s) are met:

* any person who voluntarily choose to smoke pot will NO LONGER be eligible for ANY government-sponsored health care, be it city, state, or Federal funded, except detox. They may be reinstated provided they go through detox successfully.

WHY: If you choose to mess up your own body, why should we spend taxpayer money to fix you? If you want to get fixed, sure, go through a rehab program first. Relapse will mean a PERMANENT ban from public-funded healthcare, PERIOD.

This may require the state to create a detox prison, for addicts ONLY. After all, do you really want to lock up the users along with the peddlers and other hard-core criminals? No, you can fix the users... IF they want to be fixed. And a threat of NO HEALTHCARE EVER may scare them enough.

What do you think?

Judicial Activism: the new double-speak

Image via Wikipedia

Judicial activism is currently defined as a judge using his or her position to affect/change law, instead of defining/interpreting law.

A judge's role is often to clarify law, like when multiple laws come together which one has precedence, would a law apply to a new situation previously unintended or never before existed, and so on. For example, on many constitutional issues, some local laws are claimed to interfere with such rights as Bill of Rights and so on, by one side, and the government on the other side, claiming the laws are perfectly fine as written.

A while back, several California Supreme Court judges declared that the California constitution, which protects against discrimination against various things, including sexual orientation, trumps over any local law or even state assembly laws that blockss "gay marriage", despite the previous State Assembly passage of "In Defense of Marriage Act". They are accused of "judicial activism", as religious right accused them of "imposing their minority view on the majority of Californians".

More recently, Supreme Court candidate justice-to-be Sonia Sotomayor was accused of judicial activism by no less than Senator John McCain, former presidential candidate. This is probably fallout from her "wise Latina" remark made years ago.

So what's the point? I believe there's a fundamental logic problem with the critics who accuse ANYONE of judicial activism.

If judges are to interpret law as written, irrespective of public opinion, then if they do pass a decision that is unpopular, they will be lambasted as "judicial activists who are forcing their will on the public", correct?

But the whole idea of a judicial activist is someone who used his/her opinion, instead of law as written, to interpret the law, isn't it?

So what are the critics saying? That it's okay for the judge to use PUBLIC OPINION to interpret the law, but not his or her own opinion?

Even though a judge is ONLY supposed to use the law exactly as written, and perhaps, a bit of background information to guess at the circumstances and the original INTENT of the lawmakers who passed those laws, correct?

So what are the critics really saying? That any judge that makes judgments against public opinion is a judicial activist?

I always thought "activists" are those who are trying to make a difference (I make no judgment on the worthiness of their cause). It seems that only among POLITICIANS that activist is a NEGATIVE word.

So the politicians are against judicial activists (who are best defined as judges who buck public opinion, according to above). Which would make sense, since politicians fight for public opinion.

But what about the rest of us? Perhaps we should just embrace judicial activists BECAUSE the politicians hate them.

Until they rule against your subgroup, of course.

Will the REAL Miwok Indians please stand up?

Image via WikipediaNow that Red Hawk Casino is open by "Shingle Springs Band of Miwok Indians", another Miwok Indian is getting sued by this band... With a casino feeding their coffers, they can afford to.

So what's the suit about? This man, a Mr. Caballero who CAN trace his ancestry back for 100 years in El Dorado county as a Miwok Indian, through BIA and other records, claims to be the tribal historian of SSBoMI. The SSBoMI, on the other hand, don't want him to use the name SSBoMI and claims "copyright infringement". They claim that they don't doubt that he is Miwok, but he's NOT "Shingle Springs Miwok". Though he claims he is, and he represents 400 other Miwoks in the county.

However, now that a bigger issue has been raised... That perhaps SSBoMI are NOT Miwok Indians at all.

Read the comments section and make up your own mind.