It’s not the first time a small business has closed due to pending litigation. In small communities all over California businesses, mostly in older buildings built before the 1990 passage of the Americans with Disability Act, are closing because they aren’t able to completely comply with it.
Pony Espresso at 6401 Pony Express Trail in Pollock Pines, is one of the newest to close its doors, unable to afford an attorney to fight a federal law.
“Our bathroom is not compliant,” said Jo Thurston, who with husband Harry has owned the business for five years. “When people with disabilities come here we accomodate them, but this is closing down a lot of mom-and-pop places, turning historical areas into corporate America. My husband is going to paint houses and I don’t know what I’m going to do yet. ”
In December, a number of Pollock Pines businesses received letters from Carmichael-based ADA attorney Scott Johnson indicating a lawsuit filed against them for ADA non-compliance and offering to settle out of court for a sum of money, a practice described by many victims as legal extortion and by critics as unethical.
While the law is designed to give disabled full access to public and private businesses, it has also become a lucrative business for attorneys like Johnson, who has filed more than 1,079 ADA lawsuits since 1996.
Many small businesses choose to settle out of court because, while they can accommodate people with disabilities, their buildings and parking areas can’t always be configured to comply with the stringent ADA laws. Some businesses believe they are ADA compliant because, state regulations and federal ADA regulations differ, leading to confusion about whether businesses are in compliance or not. In 2008, the ADA laws changed and the state is still scrambling to act on them.
Johnson, a quadraplegic, since a 1981 car accident, reportedly receives thousands of dollars from businesses who settle, some of which are on monthly payment plans. California state law allows disabled plantiffs to collect monetary damages. Federal ADA laws provide for the remediation of the problem and attorney fees.
Walt Harmon, owner of the historical Sportman’s Hall came under fire from Johnson.
“He wanted $10,000 to settle out of court and then he dropped it to $5,000. Then he claimed he needed to recover the court costs, but I told him I was going to be in compliance,” Johnson said.
Harmon made the modifications to the grade of the Sportsman’s Hall parking lot, changes to signage and to the height of bathroom fixtures and said he was glad to make them.
“I was in compliance before and then law changed. There is no grandfathering in. I was able to make the changes myself because I had the equipment and I’m an industrial engineer, but it would cost most people $40,000 to $60,000,” harmon said.
Burger Barn owner Laurie Tackett isn’t choosing to settle out of court either.
“Scott Johnson sent us a letter in December with the non-compliance issues and said he would settle out of court for $4,000, Tackett said. “What’s to stop him or anyone else from coming around in two years and suing us again if we don’t fix it?”
Still, the lowest bid to fix the major problem, lack of a ramp for wheelchair access, has been $5,500. “We’ve explored it from every angle,” said Tackett. With a multitude of logistical problems, putting in an access ramp is no easy fix.
“One of the options is to create a new entrance and put a door on the side, but there isn’t supposed to be a separate handicapped entrance, so that’s out too,” said Tackett. “We lease the building and the owner is willing to go in halfway with us, but if it comes to restructuring the whole building, he would choose to sell and we’d be out.”
Three families would be out on the street without the business said Tackett. Johnson did not patronize the Burger Barn, located at 6404 Pony Express Trail.
“Almost every business in Pollock Pines was targeted, ” said Jeannie Harper, executive director, of the Community Economic Development Association of Pollock Pines. “And this isn’t the first time he’s done this in Pollock Pines.”
According to Harmon, Johnson didn’t patronize most of the establishments he sued.
“He has two young girls who take photos and bring them back to him,” Harmond said.
Johnson has filed more than 1,000 lawsuits from Truckee to Stockton, leaving a swath of closed businesses in his wake.
A protest was held in front of Pony Expresso on Feb.18 and Harper has scheduled a community meeting to discuss the ADA compliance law for March 15 with government officials and has invited state Sen. Ted Gaines and Congressman Tom McClintok to attend.
AssemblywomanBeth Gaines recently introduced two measures designed to curtail frivolous ADA lawsuits. One gives small businesses an opportunity to correct an ADA violation before a lawsuit can be filed and the other, AB 1879, requires the State Architect to compile a list of all federal and state disability access requirements and identify any conflicts between them.
“Lawsuit abuse and more regulations are not leading to greater access and compliance, which was the intended purpose of the state and federal access laws,” Gaines said. “…these landmark pieces of legislation have created an unintentional consequence — having businesses close their doors because of a great cost and limited options.”
For more information about California ADA lawvisit the Website at calchamber.com. Information on federal ADA requirements can be found on ada.gov.
Contact Wendy Schultz at 530 344-5069 or [email protected]