By Joseph Perkins

I was a White House staff member when George H.W. Bush was in the Oval Office. I remember well when he signed the Americans With Disabilities Act into law, insisting that it would not “lead endlessly to litigation.”

Not in his wildest nightmares did Bush envision a serial litigant like Alfredo Garcia. The illegal immigrant (no, he’s not even a U.S. citizen) has filed more than 600 lawsuits against mostly mom and pop businesses in Southern California claiming ADA violations.

A convicted felon, Garcia hasn’t had a proper job in years. Nevertheless, he has made a pretty good living for himself shaking down small businesses, many of which happen to be owned by immigrants just like him (except that they are not professional plaintiffs).

Indeed, Garcia has testified in court that he usually makes about $4,000 a case. In 2008, that added up to $125,000 in legal settlements, according to an investigative report that aired last week on KABC-TV in Los Angeles.

Yet Garcia has claimed under oath that he made only $16,500 in settlements in 2008. He low-balled his earnings so that he would qualify for fee waivers on his hundreds of ADA lawsuits.

Each case should have cost the serial litigant a $300 filing fee. But instead of paying nearly $195,000 for his more than 600 ADA lawsuits, Garcia got away with paying nothing by pleading poverty.

The trial lawyer behind the serial scammer

Of course, Garcia wouldn’t have been able to generate so many lawsuits, and wouldn’t have been able to obtain waivers on all them, without legal assistance. And that was provided by his long-time trial lawyer Morse Mehrban, who earns a 50 percent contingency fee on all of his client’s ADA litigation.

In fact, ADA litigation makes up three-quarters of Mehrban’s legal practice, he told KABC. So prolific is the trial lawyer that his firm accounted for 30 percent of ADA lawsuits filed in L.A. County in 2010.

Mehrban sees nothing wrong with shaking down small immigrant-owned dry cleaners or nail salons. “Isn’t every lawsuit technically extortion?” he told KABC.

Moreover, Mehrban thinks that Garcia and the other ADA clients (he represents a couple dozen at a time) are somehow performing a public service with their litigation.

“I’m actually encouraged by it,” he said, “because it shows that people are doing something. They are standing up for their rights.”

Well, the only “right” Mehrban’s clients are standing up for is the dubious right to file spurious ADA claims not for the purpose of fighting discrimination against the disabled –- which was the law’s original intent -– but to earn themselves money for nothing.

Finally, good news on shakedown suits

Gov. Jerry Brown last year enacted a measure, SB 1186, intended to rein in ADA shakedown suits and discourage serial litigants like Garcia. It reduced potential damages to as little as $1,000 from the previous minimum of $4,000, but it posed no real deterrent to ADA plaintiffs.

The real game changer was not a piece of legislation but a California Supreme Court ruling this past December in which the justices held, for the first time, that plaintiffs who lose ADA lawsuits are liable for the defendant’s attorney’s fees.

That court ruling scared the bejeebers out of even a serial litigant like Garcia — so much so that he has sworn off of filing any new ADA lawsuits.

By Chris Reed

The SIA Cabinet Report education news site has a report up about a stunning jump in attendance at Compton Unified schools:

“The K-12 district of some 25,000 pupils reported an increase during the 2011-12 school year in average daily attendance of 1.5 percent. Compton officials say they are hopeful of making at least another 1 percent improvement in the current year.

“The numbers may not sound like much, but state officials point out that fluctuations in school attendance are typically measured in the hundredths of a percent, with bigger movements often taking years to evolve.

“’We tell districts when they are starting out to make attendance a priority that a good goal is a 1 percent improvement in ADA,’ said David Kopperud, a consultant with the California Department of Education who helps oversee student attendance programs.

“’If they can do that – that’s a real achievement,’ he explained. ‘Anytime a district increases ADA above 1 percent – that’s exceptional.’”

Inexplicably, the report waits until the 10th paragraph to explain why this is so significant.

“The better attendance also proved a windfall to the district’s coffers as state school funding is based on ADA. Thus, the one-year jump resulted in an additional $2 million for Compton schools.”

An incentive to defraud taxpayers

Put another way, school districts have a financial incentive to overreport ADA — average daily attendance. And so when an extraordinary increase comes along, such as the one seen in Compton, it’s not cynical to wonder if the books are being fudged. I wrote about ADA fraud for CalWatchdog in February 2012 as part of a larger piece on the pervasive moral bankruptcy of California’s education establishment:

“There are even scams that the public isn’t broadly aware of, such as those involving the basic funding mechanism for California schools. Districts are reimbursed based on the Average Daily Attendance at campuses, with reimbursements being higher for troubled and pregnant students than for regular students.

“What does this disparity lead school officials to do? You guessed it. To classify more students as troublemakers and as pregnant to get more money.

“In 1995 and 1996, when I was a columnist for the Inland Valley Daily Bulletin in Ontario, I did several interviews with an investigator for the state Department of Finance who said ADA fraud was rampant. Subsequent poking around led me to two school principals who wouldn’t go on the record because of fear of ruining their careers, but who said that some districts made up numbers as they went along.”

Compton Unified’s attendance figures may be accurate. The SI&A Cabinet Report story says boosting ADA was a goal of school leaders:

“District officials say a variety of strategies are being employed to help boost student attendance. One key, said Brawley, is better communication between teachers and administrators with parents and students.

“The district has become much more vigilant in notifying parents when unexcused absences occur, and also more consistent in meeting with family members when patterns start to emerge.

“The web-based attendance management system gives district officials near real-time data on classroom activity.”

But I get back to what the state Finance Department investigator told me in 1995 and 1996 about ADA fraud: School leaders consider it a “victimless crime.” Anything that brings more money into their districts is a good thing.

So anytime a district’s attendance increases in an “exceptional” manner, be wary.

By Katy Grimes

With cities all over the state closing community swimming pools because of budget cuts, a California lawmaker is pushing a bill requiring owners of public swimming pools to employ a “pool operator.”

California politicians have made it very clear that the residents of the state are not capable of managing their own affairs or those of their children and families. Consequently lawmakers have passed bans on smoking and plastic bag use, require fitted sheets in hotels, demanded mandatory breaks periods for babysitters, imposed regulations on fast food, required California public schools to serve breakfast, lunch, snacks, and dinners, and have even written laws requiring mandatory spaying and neutering of pets.

The pool police

AB 1726, by Assemblyman Michael Allen, D-Sonoma County, “establishes the Public Pool Health and Safety Act of 2012 which requires an owner of a public swimming pool, to employ at least one qualified pool operator,” according to the bill analysis.

But hiring a pool operator isn’t enough; the so-called pool operator must complete and pass a 14-hour pool health and safety course, register with a state agency, and pay a fee to that agency.

The “agency” referred to in AB 1726 is the State Department of Public Health, which already is tasked with supervising the sanitation, healthfulness, and safety of public swimming pools. Existing law already requires county health officers to enforce the public health department regulations.

In a not-so-subtle attempt to expand state government even more, the bill states that because “every year thousands of swimmers become sick from contaminated water, are injured from improperly maintained pools, or drown because of inadequate or unenforced pool safety measures,” more regulation is needed for the 65,000 swimming pools, wading pools, water attractions and interactive fountains in California.

The 14-hours of “pool operator” instruction must include training about “disinfection, water chemistry, water clarity, water temperature, operation and maintenance of mechanical systems, health and safety, including recreational water illness prevention, risk management, record keeping, chemical safety, entrapment prevention, electrical safety, rescue equipment, injury prevention, drowning prevention, barriers, signage and depth markers, facility sanitation, and emergency response; and, regulations, aquatic facility types, daily or routine operations, preventive maintenance, weatherizing, aquatic facility renovation and design, heating, and air circulation.”

When the training is completed, the pool operator will be a qualified Emergency Medical Technician, engineer, pool building contractor, chemist and lifeguard.

Lawmakers must be desensitized to even consider this bill at a time when the state has a $16 billion budget deficit and 11 percent unemployment. And California lawmakers continue to receive highly negative job ratings. According to the February 25 California Legislature approval ratings by Field Poll,  “[T]hree times as many voters disapprove (64 percent) of its performance as approve (22 percent).”

AB 1726 originally would have established new state regulations only for the operation of swimming pools in rental housing communities, but was amended after Apartment Association groups opposed being singled out by the bill.  The recently adopted amendments now exempt rental housing from its provisions, and define a “public swimming pool” as:

a) It is not a private pool.
b) It is operated by a public entity or is a place of public accommodation.
c) It is not a pool that is located within a public lodging providing no more than 15 rooms for public accommodation.

The California Hotel and Lodging Association and the California Association of RV Parks and Campgrounds oppose AB 1726 and see it as unnecessary “as both the market and current practice police the sanitary conditions of pools.” The RV Association also points out the certification course is costly at more than $400, and that the bill’s sponsor, as a certification training course provider, stands to financially benefit from the new training requirement.

The sponsor of the bill is the National Swimming Pool Foundation, which claims that AB 1726 “is necessary to help prevent drowning, injuries and the spread of  illnesses at public swimming pools and spas by ensuring that all public pools are maintained by well-trained pool operators.”

The National Swimming Pool Foundation offers the required 14-hour pool operator training and certification course.

Implications of the bill

Looking deeper into the bill reveals a much larger issue than just clean pool water. Taken out of the bill’s definition of a public swimming pool was federal Americans With Disabilities Act language: “‘Public swimming pool’ means a pool that complies with all of the following characteristics: (A) It is not a private pool.  It is operated by a public entity or that is a place of public accommodation to which the federal Americans with Disabilities Act applies .

David Miller with Allen’s office said that the ADA protections still apply, and they only removed the language from this bill because protections are always changing.

This is true.

The Washington Examiner recently reported that the Obama Administration’s Department of Justice issued a new guideline on January 31 interpreting a provision of the ADA, that now requires all operators of publicly accessible swimming pools—including cities, homeowners’ associations, hotels, spas, and gyms—to install a permanent fixed lift for the disabled, estimated to cost between $8,000 and $20,000 each.

“All 300,000 public pools in the United States must install a permanent fixed lift,” the Examiner said. “The deadline for compliance is tomorrow, March 15. Call it ‘Poolmageddon.'”

This is very interesting because last week the the Senate Judiciary Committee held a hearing about a bill to curb ADA lawsuit abuses. A long line of ADA activists testified in opposition to SB 1186, and several told about being denied access to hotel and public swimming pools.

Sen. Bob Dutton, R-Rancho Cucamonga, and Senate President Pro Tem Darrell Steinberg, D-Sacramento, joined forces and coauthored SB 1186, designed to curb abusive ADA lawsuits in California. Most of the ADA activists were opposed to the bill. And as distressing as much of the personal testimony was, it seemed carefully scripted.

The Examiner reported, “Compliance with the rule requires pool owners to have a lift for each ‘water element’ in their facility. So if your local community pool also has a spa, both the spa and the pool must be ‘accessible.’ But if you have two spas, don’t worry, only one lift is required.”

Apparently, most of the businesses with swimming pool pools were led to believe that, as long as they had one portable lift available, they were in compliance. “Pool owners claim they were led to believe that, as long as they had one device that could be wheeled out whenever someone needed help getting into or out of a pool or spa, there would be no need intrusive permanent fixtures,” the Examiner reported.

But then the proverbial organic substance hit the electric wind machine when the Department of Justice more narrowly defined the ADA requirements, leaving as many as 300,000 swimming pools potentially out of compliance this summer.

Hotels, public swimming pools, gyms and all public pools, with only one lift for the disabled, are fearful of more “drive-by” ADA lawsuits. Ironically, these lawsuits are what Steinberg and Dutton are trying to put an end to.

You know how regulated the people of California are when the federal government, the state, and millions of hungry trial lawyers go after swimming pools.