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A Weekly investigation last month revealed that David Gunther—an ex-drug dealer, dead-beat dad and burglar—had made a small fortune by recasting himself as a handicapped rights advocate. Targeting small Southern California businesses, Gunther ferreted out their technical violations of state and federal laws designed to guarantee wheelchair access, threatened a lawsuit and walked away with up to $16,000 from each entrepreneur. Since 2003, Gunther has hit some 300 business owners. He calls it "civil rights" work on behalf of the wheelchair-bound; his victims call it a "shakedown," "con game" and "extortion plot."
Gunther claims he's confined to a wheelchair, but several eyewitnesses told the Weekly they'd seen him walk in recent years. Displeased by our report, he demanded an apology. His wife, Olga, threatened to sue the Weekly and wrote in an email, "It's quite laughable after reading your article that you consider yourself a journalist." Marc Angelucci, one of Gunther's legal advisers, branded the article not just "tabloid" but "one-sided, sensationalistic opinion disguised as news."
But late last month, a state court of appeal said Gunther's legal tactics have indeed "led to unconscionable abuses" of the judicial system and small businesses. To receive $4,000 per alleged violation in the future, the three-judge panel imposed a new standard on Gunther: he must prove that a business owner intended to violate the Americans With Disabilities Act (ADA).
Gunther and his team of lawyers had argued they were entitled to $4,000 for every alleged ADA violation they could find, even if the violations were minor and unintended. In some cases, he filed lawsuits because he claimed a door was one pound over the weight limit or that he didn't like the location of bathroom mirrors in fast food restaurants, grocery stores and carwash facilities.
Presiding Justice David Sills found the arguments silly.
"It is, in fact, very easy to violate one of the ADA's access guidelines inadvertently, even if one has the best of intentions," said Sills, who seemed incredulous that, for example, the ADA requires visual alarms be mounted precisely 80 inches above the highest floor level or exactly six inches below the ceiling, whichever is lower.
In a 37-page opinion, Sills supported the spirit of the ADA's access provisions but worried about Gunther's "incentive" for filing "abusive litigation." He concluded that Gunther "has no right to [monetary] damages absent intentional discrimination." He can still recover attorney's fees and $1,000 per violation. Unless overturned by the California Supreme Court, the decision is expected to severely limit the income Gunther and others like him can make by threatening ADA lawsuits.
According to Sills, legislators never intended for intentional and unintentional violations to carry the same penalty. "There really is no choice between competing interpretations," he wrote. "The balance can make the difference between a small business making a technical correction like moving a mirror down or going out of business altogether."
That's not a hypothetical: in one case, one businessman said he might be forced to sell his Santa Ana restaurant after Gunther's $20,000 complaint.
Gunther and his wife did not respond to requests for comment on the ruling. Angelucci claimed Sills is misguided and portrayed the opinion as legally sloppy. In a terse email to the Weekly, Angelucci wrote, "Assuming the state Supreme Court doesn't review this, how it will affect ADA lawsuits is not certain."
The appellate case began last year after Gunther sued an Anaheim Jack in the Box franchise. Gunther claimed he entered the restaurant's bathroom, then under renovation, and discovered an exposed sink pipe and a mirror mounted a few inches higher than the ADA standard. Gunther threatened to sue the franchise owners unless they paid him $4,000 for each of the two violations. The restaurant owners refused to pay him off, and Gunther sued. When an Orange County Superior Court ruled against him, Gunther appealed.
And now he's lost again.
Ironically, Gunther told the Weekly his tactics were foolproof. There was nothing businesses could do but pay him, he said, because "the law is on my side."
Many observers say the best way to end such abuses of the ADA is to give businesses a 30-day notice to correct the problem; failure to comply with that notice might indeed prove an intention to violate the law. Entrepreneurs support the idea, but not Gunther. He said it's the equivalent of giving a bank robber a notice to quit robbing banks. Speaking to the Weekly last month, Gunther asked, "Why should a business be allowed to damage me?"