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Retailers, Small Businesses in South Bay Hit With ADA Lawsuits

Americans with Disabilities Act lawsuits are cropping up again, this time against small business owners in the South Bay.

The communities of Chula Vista, San Ysidro and National City have become target of the most recent round of civil actions claiming that people with disabilities were denied access.

Attorney Theodore Pinnock, who filed dozens of lawsuits against small business owners in Alpine and Julian in 2005, has sued more than 60 South Bay businesses on behalf of plaintiffs Noni Gotti and Barbara Humphrey.

Gotti’s name is attached to 40 lawsuits in Chula Vista Superior Court since April, and 12 others filed since May in San Diego Superior Court. Humphrey has filed 18 suits since June in the South County. Eight of those were filed on a single day , June 23 , against several San Ysidro business owners, including 18 stores at Las Americas Premium Outlets and a Subway restaurant located off West San Ysidro Boulevard.

Among the list of reasons for denied access were physical barriers, such as countertops that were out of reach and loose floor mats, and policies against service dogs.

Motivation For Suits

Pinnock, who has filed thousands of federal lawsuits in California since 1993, said he files the suits in one area at a time to try and motivate other businesses to comply.

“It’s the most effective way to promote system change,” he said July 29 through an interpreter.

San Ysidro business owners said they’ve hired an attorney to fight back. Spencer Skeen, a litigation and employment lawyer with Procopio, Cory, Hargreaves & Savitch LLP, filed a petition July 11 to move the San Ysidro cases to federal court.

“It’s my understanding that many of these businesses, if not all, acted in full compliance of the ADA,” he said.

Signed into federal law in 1990, the ADA was intended to ensure access to people with disabilities. The law prohibits, under certain circumstances, discrimination based on disability.

In general, Skeen said ADA compliance cases can be defended by proving that the business was closed, that the plaintiff never attempted to access the facility or, if they did, that they were granted full access.

Skeen said it may be the case that Gotti, described by the lawsuits as having “physical and mental impairments” requiring her to use a service dog, never attempted to access some of the businesses being sued. Gotti claims to have visited eight stores on May 18.

Ordered To Pay

Last year, a federal judge ordered Pinnock to pay $15,000 to cover legal fees incurred by a convenience store owner who was sued by Pinnock over alleged access violations.

An attorney for the shop owner showed that the business wasn’t open at the time the plaintiff alleged the denied access.

Subway franchise owner Tom Schultz said he was reviewing surveillance videotapes of the alleged incident, although he declined to go into further detail.

“I believe I’m compliant,” he said.

Don Reeves, owner and principal architect of San Diego-based Reeves and Associates, has been speaking with small business owners in San Ysidro at risk for becoming target of an ADA lawsuit.

Many of the business owners, he said, are unaware of the various laws or have taken it upon themselves to devise signage in an attempt to reach compliance.

“Its low priority with business owners until they get sued, then its ‘Uh oh, I was the unlucky one,'” he said.

Reeves, a board member of the San Diego Citizens Against Lawsuit Abuse, recently earned state certification as a trained access specialist capable of surveying businesses and making recommendations for compliance.

State Legislation Pushed

He and others representing CALA are pushing state legislation that would seek to curb the number of ADA lawsuits by encouraging the use of state-certified disability access specialists. The measure also seeks to establish procedures for early judicial review of disability access claims.

“To pay us or another design professional to do the best survey they can get and to start making the improvements will cost them far less than their retainer check to an attorney,” Reeves said.

James Mason, an attorney who has defended small business owners in ADA lawsuits, said business owners should understand it’s their obligation to make their businesses accessible to people with disabilities.

“When I first got involved, I thought that this ADA phenomenon was potentially an abuse of litigation,” he said. “And I’ve come to conclude after working consistently on the defense side all these years that, after all this time, that these cases have merit.”

Meanwhile, Pinnock said he would continue to file lawsuits against business owners who aren’t in compliance until they learn to comply.

“There will be more until the whole community complies,” he said.

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