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La Mesa Retailers Rally to Fight Costly ADA Compliance Lawsuits

Blue driveway paint , $100; two tow away signs in black and white , $68; new front door handle , $50; saving your business by getting it in compliance with the Americans with Disabilities Act , priceless.

La Mesa business owners packed the meeting room at Sanfilippos Pizza on La Mesa Boulevard on Oct. 17 to hear a presentation by Citizens Against Lawsuit Abuse , highly topical for downtown La Mesa since three of its businesses recently were slapped with lawsuits for not being accessible to people with disabilities.

The nonprofit public education organization handed out a pamphlet titled, “The ADA Top 40: Paint Blue Lines, Post Blue Signs, or You’ll See Fines,” referring to the raft of lawsuits initiated by allegedly insufficient parking accommodations.

Not coincidentally, Works of Gold Jewelry, Pr & #281;t a Porter salon and Reed’s Hobby Shop all share a common parking lot. And all have all been hit with suits from the same man, Theodore Pinnock, attorney with San Diego-based Pinnock & Wakefield APC. Pinnock alleges that the 16-space parking lot has little or no disabled access. He did not reveal the amount of damages sought.

Pinnock, who has cerebral palsy and uses a wheelchair, has battled to make small businesses compliant with ADA standards, making sure doors can be opened easily, signs are in the proper line of sight and bathroom apparatus is within reach.

“On Nov. 11, 2005, I went to Julian,” said Pinnock in a statement on his firm’s Web site. “By Nov. 23, 2005, I became a news story for being a greedy lawyer by making money on the law, which every good lawyer does.”


Owners, Landlords Liable

According to David Peters, chief executive officer of San Diego-based Lawyers Against Lawsuit Abuse, Pinnock sought $200,000 from Julian businesses for noncompliance.

“We were able to get him down to $300 from each tenant and $700 from each landlord,” said Peters, illustrating how business owners and their landlords are both liable under the ADA.

“Six businesses closed as a result and, since then, we have sued Pinnock for unfair business practices,” he said.

Pinnock says he sees the silver lining in Julian. The result of the media coverage is that “half of the Julian businesses have agreed to comply with ADA; the other half want to make peace and settle after making me public enemy number one.”

Many La Mesa merchants are worried about the same thing happening to them.

According to one attendee, many La Mesa retailers are one- or two-person operations, with each owner taking home less than $20,000 a year. With the minimum penalty for non-ADA compliance at $4,000 plus attorneys’ fees, it could amount to well over a fifth of their annual income.


Multiple Lawsuits

“You’re exactly the kind of (people) that would be targeted, because you have no choice but to settle,” said Peters, grimly.

Small businesses’ fears of being sued don’t stop with Pinnock, though. After Pinnock filed suit against Reed’s Hobby Shop, Mark Potter also sued the store for noncompliance issues. Potter is an attorney from a San Diego-based law firm, the Center for Disability Access LLP. The amount of damages he sought was unavailable.

For this reason, most attendees at the meeting wanted to remain anonymous, lest their business attract unwanted attention from lawyers.

Phrases such as “sitting ducks” and “fish in a barrel,” and the word “blindsided,” were thrown around often because of small businesses’ vulnerability to these lawsuits.

“The federal laws regarding ADA compliance aren’t only superseded by the more stringent California laws, but they’re also contradictory,” said Peters. “The laws are in a state of flux and reconciliation, and nobody is 100 percent safe from a lawsuit.”

So what can the businesses do to protect themselves?

Fix the parking lot first and foremost, said Peters.


‘Drive-By’ Suits

According to the “ADA Top 40,” parking compliance issues are “red flags” that make for easy targets and alert lawyers to inspect the business for further breaches. Parking issues account for almost 100 percent of ADA lawsuits.

“Chances are, you’ll never see a plaintiff,” said Peters. Lawyers don’t need to step outside a car to see a noncompliant parking lot, resulting in what Peters calls “drive-by” lawsuits.

One attendee brought to light the core of the issue when he asked why there weren’t government inspectors for ADA compliance like there are for food and health regulation standards.

“This law (the Unruh Civil Rights Act) was designed for private enforcement via lawsuit,” said James Mason, of Lawyers Against Lawsuit Abuse. “There’s no government enforcement or licensed inspector program.”

Peters added, “Sit down with your local legislators , don’t call them, don’t e-mail them, sit with them in person , and ask them what they’re doing to change this.”

A Web site Peters recommended often was www.legislativedisgrace.com, which shows legislators who have stood against ADA reform.

La Mesa Mayor Art Madrid attended the meeting, and advocated a business improvement district to help alleviate litigation threats.

“How can you guys get together and help each other? It’s the barn-raising mentality,” said Madrid to the crowd.

“A business improvement district is a geographically designated area where businesses are assessed a fee based on a number of factors. The money is then used to upgrade facilities, publicize events and, more importantly, to lobby the city for improvements.”

He added that improvement districts have helped revitalize Little Italy and North Park.

“(The city) can’t initiate it, though, only the merchants can,” he said.

Peters seconded the idea of an improvement district, citing the cash savings that come with it.

“The economies of scale that come with it would really help too,” he said. “Don’t have 50 different people going to buy disabled-parking signs or having 50 people pay for bathroom renovation. Instead, have one person buy 50 signs for everyone, or one person organize contracting for everyone,” said Peters.

Even with following every suggestion and spending thousands of dollars on renovation, Peters said a business would still be liable since federal and state ADA laws are fluid and conflicting.

“No one is 100 percent safe,” reiterated Peters.

A whisper at one of the tables summed up the feeling of futility at the meeting.

“The only ADA-compliant bathroom is a nonexistent one,” one of the merchants said.

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