Critics call him a shakedown artist, but Tom Frankovich considers himself a private attorney general fighting for the rights of the disabled
If you know anything at all about Thomas E. Frankovich, chances are you have a strong opinion about him. Make that a very
On behalf of his disabled clients, Frankovich specializes in suing businesses, mostly small ones, for failing to provide the access that's required under the Americans with Disabilities Act of 1990 (ADA) (42 U.S.C. §§ 1210112300). By all appearances, the 65-year-old attorney has done exceedingly well. He owns one home in the tony Marin County town of Tiburon. Then there's the house and condo in Mazatlán, Mexico, and the century-old Victorian-style building in San Francisco's Cow Hollow that he sold in 2008 for $2.2 million. He also owns two ranches in Tehama County, where he keeps a herd of 140 bison.
For Tom Frankovich, life is good.
But as a part of that life, Frankovich has been called just about every name in the book - and a few names that some publishers won't print. Business owners have denounced Frankovich as a "shakedown artist" and an "extortionist." In 2004 a federal judge excoriated him for engaging in litigation practices "bordering on extortionate shysterism." And when a radio talk show recently had him on as a guest, enraged listeners phoned in to call him a "vampire," a "charlatan," and a "parasite."
Clearly, in his line of work you need to have a thick skin - not to mention a concealed weapons permit, which Frankovich obtained after receiving several death threats.
"I'm controversial," he allows. "I approach everything like Patton and Rommel would. I believe you go for the throat as soon as you know an early resolution isn't going to work. I have no fear about spending the last dime I have in litigation. You wanna fight, then be prepared for a trial, be prepared for an appeal, be prepared for me to go all the way. Every case to me is personal."
If Frankovich sounds more like a cowboy than an august member of the bar, that's just fine with him. His standard courtroom regalia: boots, jeans, a western shirt, and a white elk-skin coat, all topped by a mane of flowing gray hair.
He has a taste for Jim Beam and a love of military history. And his website prominently displays a sketch of himself commanding a tank. When Frankovich leaves phone messages, he often gives the time in military terms, as in "thirteen hundred hours" for 1 p.m. And when he tells you how much he admires Patton and Rommel, he admits that he likes Rommel more.
To many of his clients, he's a hero of sorts. "Thank God there are people like Tom Frankovich who will do these cases," says Marshall Loskot, a wheelchair user who lives near Red Bluff and has, since 1988, used Frankovich to file dozens of ADA lawsuits. "He's had a huge impact on access," Loskot adds. "He's part of the reason that about 75 percent of the world I travel in is accessible to me."
"One thing I'll say about Tom Frankovich, he's a formidable opponent," allows Jason G. Gong, a Walnut Creek attorney at the Livingston Law Firm who has faced off against him on several cases. "Some defense lawyers who might be relatively new to the area might find it easy to dismiss him. But that would be a mistake."
According to one estimate,
at least 42 percent of the nation's ADA-related lawsuits are brought in California, making this state ground zero for access filings. It's not hard to understand why. In most states, ADA plaintiffs are entitled only to injunctive relief - that is, having an access issue remedied - plus attorneys fees. But in California, access violations also run afoul of the state's Unruh Civil Rights Act (Cal. Civ. Code § 51(f)) and the California Disabled Persons Act (Cal. Civ. Code §§ 52(a), 54(a)), which allow plaintiffs to tack state claims for money damages onto requests for injunctive relief in ADA lawsuits filed in federal court. And California law provides for treble damages, with a minimum of $4,000 per occurrence, plus attorneys fees.
That may not amount to much for a single case, but it can add up if you're filing dozens of cases every year. The statutory minimums per incident can also pile up if a particular plaintiff has been denied access on several occasions, since each instance is a separate violation under the statutes. (See Feezor v. Del Taco Inc.
, 431 F. Supp. 2d 1088 (S.D. Cal. 2005).) Still, only a very small group of practitioners - perhaps no more than 20 - generate the bulk of the filings. Frankovich himself usually files about 6 or 7 ADA suits per month, and has 50 cases going at a time.
To hear defense lawyers tell it, small, mom-and-pop-type businesses are particularly attractive targets for ADA suits, since they are most likely to settle quickly rather than mount a six-figure legal battle. David Warren Peters is CEO and general counsel of Lawyers Against Lawsuit Abuse, a San Diego law firm that represents defendants who have been sued for ADA access violations. "[A plaintiffs lawyer] can make 50 grand in an afternoon" with a lucky filing, he says. "It's unbelievably profitable."
There's no doubt that the Americans with Disabilities Act has made the world more accessible to millions of people with physical disabilities. But when the first President Bush signed this landmark law more than 20 years ago, it contained no provision for government enforcement of access rules. Instead, the act was to be policed largely through private causes of action. And while that's been a boon for the plaintiffs bar, it may not be the best or most efficient way to remove physical barriers.
"You have some defendants who blow their wad on litigation and then don't have money left to make changes," says Peters. At the same time, he adds, some plaintiffs make monetary settlements "that require almost nothing in the way of access, and it's wrapped in a very strict confidentiality provision. We've seen that done in hundreds of cases throughout the state."
Indeed, even the so-called frequent filers - disabled people who make significant amounts of money by filing multiple ADA claims with the help of lawyers like Frankovich - admit that getting defendants to make needed modifications remains a serious problem. "I know businesses that have been sued three and four times by different people because the owner didn't fix the problems," says Frankovich's client Marshall Loskot. "People will sign an agreement and pay you off and never do the fix. The [plaintiffs] lawyer just feels it's more cases for him, and I feel that's unethical." Loskot insists, however, that Frankovich doesn't operate that way.
But even if Frankovich is on the side of the angels, to many of the business owners he sues, he's the devil incarnate. This doesn't seem to bother Frankovich a bit. "When ADA litigation picks up in a neighborhood, people say, 'Oh my God, they're suing the mom and pops; there's a predator loose,' " he says with mock horror. "Everyone kind of forgets that mom and pop is the tenant, but the landlord has owned the million-dollar building since the ADA was passed in 1990 and has taken no measures to make it accessible." (In general, landlords and tenants are jointly responsible for compliance with access laws, but they are free to shift responsibility between them by contract.)
"The hammer of litigation is the only thing that gets small business to comply with the law," he adds. "Litigation becomes a necessity because businesses have a 'wait until I'm sued' attitude."
Of course, with lawyers like Tom Frankovich around, they usually don't have long to wait.
Like a lot of people these days,
Gwen Sanderson holds down two jobs. One of them is running a small video and DVD store tucked away in San Francisco's Noe Valley. The other is dealing with an ADA complaint that Frankovich filed against her and her business partner six months ago on behalf of two disabled clients (Ramirez v. Video Wave of Noe Valley
, No. 11-CV-278 (N.D. Cal. filed June 7, 2011)).
Sanderson has consulted multiple disability-access specialists, building inspectors, and small-business organizations and attended a Bar Association of San Francisco workshop in an effort to find out exactly what modifications she needs to make to bring her 400-square-foot store into compliance with the ADA and California's access laws. And though she's heard different things from different experts, she's nevertheless moved forward with several alterations, purchasing a portable ramp so wheelchair users can negotiate the two- to six-inch step at the store's entrance, installing a door buzzer along with signs instructing disabled customers to ring for assistance, and hiring a state-certified access specialist to inspect her shop. But these measures came too late to head off the lawsuit, which has left her feeling both victimized and resentful.
"It's been a big waste of my time and resources," she laments. "I've spent about $3,000 so far and we work at break-even; we don't have any money in the bank. I borrowed money to retain my lawyer."
Still, Sanderson has so far resisted any temptation to settle. "I really have a problem with settling," she says. "What about my
civil rights? What about the distress I've been put through, and the time and money I've spent?"
Sanderson is one of several shop owners in the neighborhood who have been hit with suits filed by Frankovich over the past year, and nearly a dozen more have received letters warning them of access violations. Meanwhile, across town, he is suing more than a dozen small restaurants on behalf of a disabled client named Craig Yates, a frequent filer who since 2007 has been a plaintiff in 140 ADA suits. Indeed, such filings have become so prevalent in San Francisco that last fall the president of the city's Board of Supervisors, David Chiu, sought to fast-track the construction permits needed to bring businesses into compliance with the law. His plan also would allow small restaurants to exclude from the calculation of maximum allowable square footage any space used for disability access, and require landlords to bring ground-floor entrances into compliance before renting their buildings to new tenants.
Under the ADA, businesses have a continuing obligation to identify and remove architectural barriers that prevent people with disabilities from enjoying the same goods and services that able-bodied people enjoy. There is one notable exception: Building owners don't have to make alterations that aren't "readily achievable" - a standard that in the face of so many rules hardly provides crystal clear guidance.
In fact, the law contains literally thousands of rules - everything from the minimum width that must be left clear for wheelchair passage (32 inches at a point and 36 inches continuously) to exactly where toilet paper dispensers are to be installed in the bathroom (mounted on the side wall nearest the commode, a minimum of 19 inches above the floor). All of this makes compliance a challenge - even for those with the best of intentions.
"I rarely if ever see instances where there isn't an access violation somewhere," says Kim Blackseth, a Napa-based state-certified access specialist who has consulted businesses on ADA compliance for more than 21 years and is himself a quadriplegic. "I can find something wrong anywhere."
But don't talk to Frankovich about how difficult it is to comply. He points to a 2004 report by the San Francisco Collaborative, a coalition of businesses and disability-rights activists, that found that most business owners did not take advantage of a program to help them bring their facilities into compliance, and that they took action only when the threat of litigation or fines forced them to. "When they say it's a technical violation, that's nonsense," he says. "It means you didn't meet the minimum standards."
Such is the hard line Frankovich takes when it comes time to negotiate.
"It's not like other negotiations," says San Francisco attorney Ragunath K. Dindial, who has represented several clients sued by Frankovich. "He'll tell you, 'the more time I spend on this, the more attorneys fees I incur.'"
Frankovich may keep a steady bead on small-business owners,
but not all ADA plaintiffs lawyers make their money that way. Attorney Lynn Hubbard III of Chico, for one, prefers to go after big companies and chain stores. "You don't want to sue a mom and pop," he argues, "because when you've got people working 80 hours a week trying to make a living, they don't have money to make the changes. You're better off just telling them, 'Hey, would you try to change this before somebody sues you?' If they're not nice, they might get sued, but I try not to."
Hubbard isn't nearly so restrained with larger enterprises, though. At any given time he'll have as many as 250 ADA suits in various stages of development. On business trips last year he spent 173 nights in hotels, and at age 71 he still puts in 80-hour work weeks. Over the course of six particularly prolific days last July, he filed 20 ADA suits against chains ranging from Cost Plus and Safeway to Wendy's and Bed Bath & Beyond, all but one of them on behalf of a single client.
And though his critics say he's a handmaiden for serial plaintiffs, Hubbard says they have it backwards.
"How about the McDonald's or Sears or Targets that you see so many ADA suits against?" he asks. "Are we going to call them serial defendants? You'd think after 20 years they would have gotten it right. Some of them haven't made any changes at all."
A case in point, says Hubbard, is Pier 1 Imports. Back in 2006, the chain lodged a vexatious litigant motion against one of his clients who'd lent his name to 85 ADA-related suits. But U.S. District Judge Lawrence K. Karlton embraced Hubbard's logic and denied the motion. "From all that appears," he wrote, "the number of lawsuits plaintiff has filed does not reflect that he is a vexatious litigant; rather, it appears to reflect the failure of the defendants to comply with the law." (Wilson v. Pier 1 Imports (U.S.) Inc.
, 411 F. Supp. 2d 1196, 1200 (E.D. Cal. 2006).) Karlton also rejected the defense contention that Hubbard was inappropriately relying on "boilerplate" complaints. "It is unclear to this court," he wrote, "why uniform instances of misconduct do not justify uniform pleadings." (Wilson
, 411 F. Supp. 2d at 1201.)
In the Sacramento area, another plaintiffs attorney who makes a living off these cases is Scott N. Johnson. But Johnson is disabled himself, and he routinely drives around town in his hand-controlled van, filing complaints on his own behalf when he encounters access issues.
Johnson did not return repeated calls for comment. But Sacramento defense attorney Robert Lorbeer is more than willing to talk about the lawyer he's opposed in at least 100 cases. "With Scott," he says, "the m.o. is exactly the same: He drives by a business or uses Google [Street View] and claims to the court that he's been there and sues because he's been injured or embarrassed. And it's always the same thing, that there's no van-accessible parking. Oftentimes, the business will have handicapped parking but not van-accessible handicapped parking. It's literally a drive-by lawsuit."
Lorbeer and others say that because Johnson represents himself in court, he rarely asks for attorneys fees, and often he settles cases for $3,000 to $5,000, which is on the low side for ADA actions. But he files hundreds of these suits every year - in just one 15-day period last July, he lodged 51 such complaints against defendants that ranged from a liquor store to a welding supply company.
"All it is, is a tax on small business," says Lorbeer. "It's crazy, absolutely crazy. And some of them have to go out of business" because of the expense.
Defense attorney David Peters, in San Diego, also has war stories to tell. In fact his firm, Lawyers Against Lawsuit Abuse, has consulted in more than 850 ADA cases across the country, and Peters helped compile a database of more than 14,000 ADA-access lawsuits in California that lists more than 100 frequent plaintiffs and their lawyers. He's also produced a thick information packet for new and prospective clients that's full of specific steps businesses can take to avoid an ADA lawsuit or mitigate damages once one has been filed. The materials stress that businesses need to comply with all ADA requirements, but they point out that one of the easiest ways to prevent a lawsuit is to make sure the parking area is compliant. One page advises: "If a 'scout' drives by your parking area and sees that it is highly compliant with access standards, they may think that you have already been sued and modified the area as a result."
"I do understand the frustration of many people in the disabled community over access," Peters says. "The fact is, there's a lot of noncompliance [with the ADA]. But let's put the blame where it belongs, which is on the way the law is structured and on the way legislators have failed to consider appropriate reforms. If we're creating a system that depends on private enforcement, then we need to have safeguards that prevent inappropriate conduct."
A few years back,
a Bakersfield attorney named Craig N. Beardsley who was looking into Frankovich's practice gained access to hundreds of settlement documents. Beardsley found that in an average $20,000 settlement, Frankovich's clients would walk away with about $4,000 while he pocketed just about all the rest.
"Do I do well?" Frankovich asks. "Yes," he says, he does. "My clients want a fair fight. My rate is $500 an hour, and I'm probably worth $750. Everybody's getting a deal at $500. You think the disabled community wants to hire a lawyer who operates out of a thrift store? No. They want someone out of Neiman Marcus. I'm good at what I do, and I want to be paid for being good. If you want to go to the party, you better be ready to bring the party favors."
Frankovich was born in Detroit, and his family moved to Southern California when he was three. He received his undergraduate degree from California State University, Northridge, and worked for Xerox and IBM for a couple of years before deciding that he wasn't cut out for corporate life. He attended night classes at Southwestern University School of Law and was admitted to the California bar in 1977. He spent a few years practicing at a defense firm in Los Angeles until one day a partner told him that he had "a plaintiff's attitude." Frankovich took the comment to heart.
For the next ten years, he practiced personal injury law from an office in Century City, which he says was more lucrative than the work he does now. After moving to the Bay Area in the 1990s, he brought a number of cases involving the mishandling of cremated remains, and at one point he even took the trouble to become certified as a cremationist. Gradually, though, ADA cases started coming through the door, and by 1998 he was doing them full time.
Frankovich, who is divorced and has been living with his significant other for the past 13 years, talks about going into "semiretirement" soon. He waxes fondly about his bison herd, mending fences, and driving around in a dented 1983 ranch truck. "My idea of privacy," he says, "is when you can stand on your porch and take a piss, drink a beer, and shoot a gun all at the same time and no one says boo."
Frankovich has handled thousands of ADA matters over the years, but the biggest fight of his life came in 2008 when he had to defend himself before the State Bar Court of California. Frankovich faced accusations of scheming to extort settlements, seeking to mislead a judge, and making unethical settlement demands. The memory of those charges still stings, and with no prompting he produces a sheath of documents that lay out the matter in minute detail.
The State Bar complaint stemmed from a case Frankovich filed in 2004 on behalf of a disabled client named Jarek Molski (Molski v. Mandarin Touch Restaurant
, 347 F. Supp. 2d 860 (C.D. Cal. 2004)). It was one of at least 223 ADA lawsuits Frankovich filed in federal courts that year, 156 of which were on Molski's behalf. Molski had become somewhat infamous by then for having signed on to hundreds of ADA complaints throughout the Central and Southern districts of California. (In one year alone, he later testified, he recovered an astonishing $800,000 from the resulting settlements.)
After the Mandarin Touch
case was filed, though, the owner of the Solvang restaurant sought to clip Molski's frequent-filer wings by having him declared a vexatious litigant. And in December 2004 U.S. District Judge Edward Rafeedie did just that, using the words "bordering on extortionate shysterism" to describe Frankovich's role in the offending conduct (Molski v. Mandarin Touch Restaurant
, 359 F. Supp. 2d 924, 937 (C.D. Cal. 2005)).
Frankovich appealed Rafeedie's finding, but in August 2007 the Ninth Circuit Court of Appeal affirmed that Molski was indeed a vexatious litigant (Molski v. Evergreen Dynasty Corp.
, 500 F.3d 1047 (9th Cir. 2007)). Frankovich sought a rehearing, which was denied, although in a sharply worded dissent Chief Judge Alex Kozinski observed that Molski had been judged a liar and a thief without evidence, witnesses, cross-examination, or any of the other rudiments of due process (Molski
, 521 F.3d 1215, 12201222 (9th Cir.), cert denied, 129 S. Ct. 594 (2008)).
Within six months the State Bar weighed in, filing two notices of disciplinary charges against Frankovich. With his law license on the line, Frankovich elected to represent himself, and ended up spending five and a half days pleading his case before the State Bar Court. Apparently, he did a pretty good job.
On June 25, 2009, the panel ruled that Judge Rafeedie's findings were based "more on assumption and innuendo than testimonial and documentary evidence." It also ruled that State Bar prosecutors had failed to make the case that Frankovich had engaged in any scheme to extort, had sought to mislead a judge, or had committed acts of moral turpitude in his settlement demands. In fact, the Bar Court found Frankovich guilty of only one unrelated violation: improperly communicating with a representative party in a foreign jurisdiction. This, says Frankovich, consisted of a single phone call that lasted only two minutes.
"Everyone talks about Mandarin
," he grouses. "No one wants to talk about the fact that I ... whipped the State Bar in pro per. Everyone glosses over that. They say, 'What about Judge Rafeedie?' Well fuck Judge Rafeedie."
Rafeedie died in 2008.
For all of the talk about shakedowns,
a less stringent law than the Americans with Disabilities Act probably would not have compelled millions of businesses to make their buildings more accessible to disabled patrons. But is the law also hurting some of the very people it's supposed to help?
Access specialist Kim Blackseth is among those who voice this concern. He says motel owners have told him that when someone calls asking for a wheelchair-accessible room, they always say it's occupied, figuring that the money they'd make on the room isn't worth the risk of putting up someone who might sue. And when Blackseth himself rolls into a business in his wheelchair, he too occasionally registers a distinctly negative vibe.
"Sometimes," he says, "you go into a restaurant and you can just feel the tension where the owner is thinking, Is he one of those guys?
I've got enough stuff going on, I don't need that. But in some ways, I understand their position. The lawsuits are driving a wedge between the business community and the disabled community, and that's not what anyone wants."
Nevertheless, Blackseth doesn't want anyone to water down the law. "It's a two-edged sword," he says. "I don't like what some of the ADA lawyers do. In many ways, it's obnoxious and poor public policy. But there's no question that a lot of access does happen as a result of these lawsuits. It's absolutely clear that we have access we wouldn't have had otherwise, without someone's wallet being challenged with damages."
Over the years a number of ideas for reforming ADA have been floated. But opposition from both disability-rights groups and the plaintiffs bar has prevented them from getting very far. One proposal involves abandoning the vague "readily achievable" standard to give business owners a clearer sense of what changes they need to make to avoid litigation.
Another idea - which the California Legislature has rejected 13 times now - would provide businesses with a grace period to make any necessary alterations before they can be sued for access violations. (Last session, state Senator Bob Dutton (R-Riverside) proposed such a bill (SB 783), which would have given businesses 120 days to fix alleged deficiencies before a lawsuit could proceed. It died in committee.) Meanwhile, U.S. Rep. Duncan Hunter, a Republican from San Diego, has introduced in Congress a 90-day version of similar legislation - his fourth attempt since 2000 to establish a grace period after notification.
In his work, Tom Frankovich likes to think of himself
as a private attorney general. But there is at least one curious irony about his practice: Up until 2008, Franko-vich kept his office in a turn-of-the-century home that had nearly 20 steps leading from the sidewalk to the front door and no elevator to the second or third floors, making it entirely inaccessible by wheelchair.
Frankovich says he looked into building a ramp to the front door, but the landing wasn't big enough, and an elevator, he says, would have been extremely expensive to install and therefore not "readily achievable" under the law. This meant that Frankovich often had to meet his disabled clients either at their homes or at another, more accessible location.
In 2008, Frankovich sold the Victorian and moved into an office in San Rafael that he says is fully ADA compliant. "I'd have to be pretty stupid to have an inaccessible office," he observes. "I'm not going to make that mistake."
And yet, when it comes to satisfying chapter and verse of the disability-access requirements, even Frankovich may have overlooked a few details. For one thing, as of three months ago there was no demarcated, wheelchair-accessible path of travel from the public sidewalk to the front door of the building complex where his current office is, as mandated by ADA Accessibility Guidelines (see 36 C.F.R., Part 36, App. A, § 4.3.2(1)). That means someone in a wheelchair would have to cross a lane of car traffic (the driveway) to reach the door. Also, one of the disabled parking spaces closest to his office marked "Van Accessible" had the diagonally striped access aisle painted on the driver's side, rather than on the passenger side as required by the California Building Code. The sign marking the other space was almost completely obscured by tree foliage. Moreover, both parking spaces lacked the "$250 Minimum Fine" warning signs mandated by California's Vehicle Code and Building Code. (See Cal. Veh. Code § 225511.8; Cal. Building Code, Cal. Code Regs. tit. 24, § 1129 B.4.) And the tow-away sign failed to include, as required, the address where towed vehicles might be reclaimed, and incorrectly referred to "disabled persons" instead of "persons with disabilities."
"I know they sound like technicalities," says Peters of Lawyers Against Lawsuit Abuse. "But if my clients had any of those issues, they'd be sued in a heartbeat."
Tom McNichol is a San Francisco based freelance writer.