I was amused to find that Marc Angelucci—the attorney who sued a small business owner for thousands of dollars for minor and unintentional ADA violations while his restaurant was under construction—posted a response to my recent post about California Senator Leland Yee’s new language discrimination bill. Mr. Angelucci purported to correct me by pointing out that he has “not done ADA or Unruh Act lawsuits in a long time.” Good! But I never suggested otherwise. Mr. Angelucci also purported to admonish me for
fail[ing] to mention that even though the ADA has been around for many years scores of businesses still don’t use ramps and fail to remove their barriers, and that the AG does virtually nothing about that. And, of couse, he never mentions that it took these ADA plaintiffs to force serious changes, as thousands of businesses suddenly start removing their barriers after they hear about the lawsuits in the media and elsewhere.
Fine, but I never talked about “ramps” or “barriers,” either. And importantly, in his famous case of Gunther v. Lin, neither did Mr. Angelucci.
Instead, he sued for hyper-technical—and admittedly unintentional—infractions of the ADA and Unruh Act. Because Mr. Angelucci—who the California Supreme Court, Court of Appeal, and Superior Court suspect of being one of this state’s cottage industry of “professional plaintiffs who ‘shake down’ business entities on the basis of assertedly technical violations of civil rights laws” (Angelucci v. Century Supper Club, 41 Cal. 4th 160, 178 (2007))—apparently forgot the facts of his own case, I quoted from the opinion to refresh his recollection:
Plaintiff David Gunther uses a wheelchair. He entered the restroom in a Jack-in-the-Box restaurant owned by defendant John Lin at a time just before the completion of remodeling. The toilet was accessible and otherwise in compliance with the ADAAGs, but he found (a) a lack of insulation underneath the sink, and (b) a mirror that was too high. Gunther brought this action, seeking at least $8,000 in automatic penalties under section 52 for the two alleged ADAAG violations.
There is also no question that defendant Lin never intended to violate the ADA. In his answer to Gunther’s complaint Lin claimed that Gunther had entered the restroom “before our handyman had finished his work” of wrapping insulation around the pipe under the sink. Moreover, normally the restroom never has mirrors for anybody (because the mirror was subject to vandalism); an employee simply hung one by mistake.
Here’s more analysis of the Gunther case and the Munson v. Del Taco California Supreme Court decision overturning it, which furthered California’s litigation-rife anti-business climate by holding that even unintentional hyper-technical violations must be assessed against California’s small businesses to the tune of $4,000 each.
In addition to using the Unruh Act to persecute small businesses for ADA infractions, Mr. Angelucci also used the Act to end “Ladies’ Day” and “Ladies’ Night” discounts in California. In Angelucci v. Century Supper Club, the Century Supper Club offered a discount to women on certain occasions when Mr. Angelucci visited the Club. According to a previous California Supreme Court decision written by Jerry Brown appointee Chief Justice Rose Bird, Koire v. Metro Car Wash, California does not allow its businesses to offer discounts on the basis of sex—even though for a non-arbitrary, legitimate business purpose, with no invidious intent, and with no resulting injury to any person, and even though the Unruh Act otherwise prohibits only arbitrary discrimination, not all differences in treatment. See Pizarro v. Lamb’s Players Theatre, 135 Cal. App. 4th 1171, 1174 (2006).
Interestingly, the Koire decision chided the Washington Supreme Court for not reaching the same conclusion in banning “ladies’ nights” in that state:
With all due respect, the Washington Supreme Court also succumbed to sexual stereotyping in upholding the Seattle Supersonics’ “Ladies’ Night.” (MacLean v. First North. Industries of America, supra, 635 P.2d at p. 684.) The court found that the discount was reasonable because, inter alia, “women do not manifest the same interest in basketball that men do.”
This sort of class-based generalization as a justification for differential treatment is precisely the type of practice prohibited by the Unruh Act. . . . These sex-based discounts impermissibly perpetuate sexual stereotypes.
It hardly seems persuasive that the reason for civil rights legislation was to prevent business owners from acknowledging empirically observable realities—say, that men attend Seattle Supersonics games more frequently than women—and offering enticements tailored to make the Sonics more enticing to the latter. As Tim Sandefur explains:
“The civil rights laws were passed with the important intent to eliminate invidious discrimination against oppressed minorities, and instead they’re being for commercial gain when the conduct is not something that harms anybody. Ladies’ Nights are not a form of oppression against women.”
(Emphasis mine. See also Deborah La Fetra and Tim Sandefur’s amicus brief filed in the Angelucci case.)
Mr. Angelucci sought to take the Koire decision one step further and permit plaintiffs to recover the $4,000-per-infraction statutory damages—and a shot at attorneys’ fees—without first having to make any request or demand to the business owner for the same discount. Predictably, the Court of Appeal rejected Mr. Angelucci’s claim, reasoning that he was not “denied” his rights because he did not suffer refusal of an express demand that the club accord him equal treatment. The panel also noted that requiring Mr. Angelucci and his co-plaintiffs to demand equal treatment would ensure they are using the law to punish genuine misconduct rather than exploit businesses for financial gain. That is, the Court of Appeal wanted to prevent Mr. Angelucci and his cohorts from continuing their practice of filing “shake down” suits.
Unfortunately, the California Supreme Court disagreed. The Court’s rationale is bizarre in many instances, but none so much as in this observation:
If businesses are held not to violate the Act or inflict injury unless they are challenged by a patron, their ordinary practice may revert to discrimination, with special exceptions being made for individuals who happen to challenge the practice.
It is this same curious sentiment that was expressed in a comment to my previous post:
Does Mr. Kowal somehow think such sex-based disparate pricing is okay? If so, someone ought to see what he charges his male and female clients.
Both of these statements prompt the question: Where is the flood of latent invidious discriminatory tendencies that the California Supreme Court’s over-expansive reading of the Unruh Act is alone holding back? Where is the evidence that a torrent of noxious gender-based pricing practices would, if not for “professional plaintiffs” like Mr. Angelucci, have been loosed upon us? And why does a commenter on this blog think that, if not for the Unruh Act, I personally would suddenly be overcome by the urge to charge my male clients more or less than my female clients? For its part, the Court could not point to a single instance in our history in which a discount had been offered to women—or men for that matter—for an invidious purpose. Instead, the Court focused on examples of racial discrimination, citing to the notorious example of segregated drinking fountains, apparently without noticing the irony of the wholly uncontroversial reality of male and female segregated restrooms and changing rooms. There seems to be a general phobia that every business owner is chafing to be free of legal constraints that prevent them from acting contrary to their own economic self-interest, and to instead oppress and offend their customers. (This is similar to the phobia the Iowa Supreme Court exhibited when, even though acknowledging the state’s legislature “demonstrate[d] a legislative recognition of the need to remedy historical sexual-orientation based discrimination,” the Court nonetheless feared the legislature wouldn’t get to the desired result on the same-sex marriage issue as quickly as the Court liked.) This phobia apparently possesses the California Supreme Court.
Most Americans are reflexively in favor of the concept of “equality,” and reflexively against the concept of “discrimination,” because the words are so commonly coupled in political and historical discourse with “racial,” or “religious,” or “political.” Those campaigns for equality and against discrimination sometimes concern egregious historical abuses concerning the most fundamental of rights, which abuses were extinguished only at great cost. It is good and right that we exalt such concepts as overarching symbols of the American political order; such symbols serve as a means of expressing our hard-fought fundamental values as a people, and of forefending threats that might still be lodged against them.
Beyond a few relatively narrow areas, however, “equality” and “anti-discrimination” as political symbols bear little application to “equality” or “anti-discrimination” as legal standards. No one seriously believes, for example, that doctors and janitors are entitled to equal pay, that Best Buy and Radio Shack are entitled to equal market share, or that the Yankees and the Red Sox are entitled to an equal number of World Series championships. Similarly, few people other than the National Coalition for Men actually believe that “Ladies’ Nights” represent a continuation of the invidious past practices of separating blacks and whites or denying women suffrage. Thus, we now expect and demand protection of unequal results corresponding to the input of unequal talents and efforts, and the enforcement of practices based on non-arbitrary legitimate distinctions based on gender.
Similarly, we demand inequality on a wide array of other questions—e.g., who is qualified for employment as a police officer or a fire fighter; who is allowed to drink alcohol; whether gardeners and nuclear power plant operators should be equally regulated. When it comes to such questions concerning the public health and welfare, the equality principle is significantly circumscribed.
Equality and discrimination, then, are strange concepts, as they at once guarantee and threaten liberty depending on the subject matter. There is no doubt that liberty cannot endure when, for example, racial minorities are arbitrarily deprived of protection of fundamental rights. But neither can there be any serious doubt that liberty cannot endure when everyone is deprived of protection of fundamental rights so that an equal menu of positive rights can be offered up in exchange. Thus, the way in which some individuals are deprived of personal, political, economic, and property rights in order to promote social and economic equality poses a substantial threat to classical liberty generally. Similarly, it cannot be seriously doubted that the state cannot serve its necessary function to protect the public health and safety if it must yield in all cases to a mandate of absolute equality. Equality as a legal concept is a lancet, not a sledgehammer.
Getting back to Mr. Angelucci, even the California Supreme Court shared the trial court and the Court of Appeal’s concern that he and his co-plaintiffs were suspected “shake down” artists who exploit technical violations of California’s civil rights laws in order to make a living:
The trial court’s and the Court of Appeal’s interpretation of section 52(a) reflects in part defendant’s assertion that Angelucci and the other men involved in the present case are professional plaintiffs who “shake down” business entities on the basis of assertedly technical violations of civil rights laws and similar enactments, and that they and their attorneys engage in this practice simply to make a living—unmotivated by any desire to eliminate discrimination or to redress any actual injury. Defendant claims that plaintiffs made repeated unannounced visits to defendant’s business establishment in order to increase the statutory damages they could seek for multiple violations of the Act, and defendant accuses plaintiffs and their attorneys of being “bounty hunters” who have been involved in numerous similar lawsuits. Defendant also contends that meritless, abusive litigation of this type is proliferating in California and generally results in the extortion of a settlement on the basis of the plaintiff’s unsupported factual allegations.
Thus, a “courageous” “advocate for equal treatment” and “social justice” are not the words I would use to describe Mr. Angelucci.