LUMBERYARD LOGS: ‘Drive-by’ lawsuits hit local businesses

Imagine you’re a small business going along, minding your own business, trying to stay afloat in a rotten economy, when a federal lawsuit suddenly lands on your doorstep. Not a pleasant thought. Actually, it’s a very scary thought.

And the worst of it is, the lawsuit’s accusations happen to be true. You have been busted by a self-appointed, private enforcer of the Americans with Disabilities Act.

Now, not only will you have to make expensive modifications to your property, to which you thought the ADA did not apply, but you’ll have to pay at least $1,000 to the attorney who filed the suit.

It’s been happening all over California for years. And it happened over the past few months in Laguna Beach.

“Drive-by lawsuits” is how one local business owner/defendant describes the activities of Pinnock and Wakefield, a San Diego law firm specializing in taking small businesses to court for thousands of dollars in damages over their failure to adhere to the requirements of the ADA.

That “drive-by” description fits because the plaintiff in the case, a disabled person, literally drives around looking for businesses that don’t have handicapped parking spots or signs designating them, or other things required by the ADA.

Or rather, they are driven around by an attorney looking for lawsuit targets.

They don’t go into the businesses, they simply “drive by.”

And it’s all perfectly legal.

Theodore Pinnock, Esq., the lead attorney in thousands of cases filed against businesses large and small, got his start in the fertile field of ADA litigation back in 1992 when he sued an IHOP restaurant in his home town of San Diego after he had to crawl into the bathroom following a meal.

Pinnock is disabled and uses a wheelchair. He claims that he tried to reason with the IHOP franchise to accommodate wheelchairs, to no avail, before deciding to take the case to court. He won, hands down.

That seminal 1992 case was apparently a “first” in forcing businesses to modify their existing facilities to conform to the ADA, which had been adopted just two years earlier in 1990.

The suits are still coming fast and thick, only now Pinnock isn’t filing them on his own behalf. Now he finds people with disabilities to act as plaintiffs, claiming they were denied access, or would have been unable to access the business — had they not simply driven by to see if a sign or a handicapped parking spot was present.

Nor does he notify the errant businesses of the accessibility issues to give them a chance to correct them. The only notice the business owners I talked to got was a summons in the mail informing them a lawsuit had been filed against them in federal court.

ADA plaintiff Noni Gotti has his or her name on some 40 cases filed against hotels, restaurants, fast food joints, etc. in the area — including practically all of the little businesses at Dana Point harbor.

Most of the suits were filed in one day.

A Laguna Beach business owner brought this to my attention a couple of months ago. He was practically shaking in his shoes over his lawsuit and now wishes to remain anonymous because he’s concerned he may not be free and clear of Pinnock’s legal hooks.

The unnamed business owner was pretty embarrassed to have been accused of a federal civil rights violation against the disabled. He was under the impression that older facilities like his did not have to undertake extensive modifications to comply with the ADA. But he didn’t have the energy or money to fight the accusation.

It’s all very murky, unfortunately, and the ADA doesn’t make it easy for businesses to know what to do to avoid the likes of Pinnock.

So the business owner let Pinnock tell him what to do.

What the business owner did to satisfy Pinnock was to:

 repave his parking lot;

 mark out a handicapped space;

 post a sign visible from the street; and

 pay Mr. Pinnock $1,500 to drop the lawsuit.

The modifications cost several hundred dollars at least, plus the payment to Pinnock to “settle” the case.

Apparently the paperwork is still in process, because when I checked the court records Friday the case had still not been dismissed.

Another Laguna Beach business owner ended up giving Pinnock $2,200; the attorney had asked for $7,000. That owner, who had his own attorney on the case, complied with the ADA by posting a sign.

Other Laguna Beach lawsuits have been dismissed, but some I found are set for hearings in the coming months.

While the businesses have to shell out a bunch of money for modifications and to pay off the plaintiffs, the plaintiffs pay nothing to file their cases. Gotti was able to get a waiver of court filing fees — presumably because he or she is indigent.

You may imagine that Pinnock’s activities have caused some consternation in the business community and accusations of lawsuit abuse. When he went after the tiny, historic town of Julian — suing virtually every business there in 2005 — he got some critical press but was not dissuaded.

His website touts his “successes” in Julian, where he claims to have greatly increased the accessibility of the town. We certainly hope some good has come from all this litigation.

Pinnock states that his firm’s “objective is to achieve full ADA compliance by 2050.” So he has a lot of work ahead of him.

By the way, ADA lawsuits in the San Diego area, Pinnock’s stomping grounds, have reportedly reached the 5,000 mark, with $1 billion sought in damages.

In response to Pinnock’s activities, small business advocates and disability champions put their heads together to write a new state law, which took effect Jan. 1, and is supposed to stop the filing of “drive-by” lawsuits and promote ADA compliance in an orderly and non-punitive manner.

The law sets up the California Commission on Disability Access, and a formal ADA certification process so businesses can prove they are in compliance. The law also aims to deter “boiler plate-language” lawsuits by requiring plaintiffs to prove they have actually been denied access at a particular time due to a disability. It also requires local agencies to hire at least one ADA-trained building inspector by July 1, 2010, but of course there is no money committed by the state for that.

The city of Laguna Beach is “working on the issue,” but only with regard to new or remodeled structures, according to city officials. In response to my request, here is what John Gustafson of the city’s Building Department had to say:

“The city does not enforce ADA requirements. It is important to differentiate between California Building Code (CBC) requirements and ADA requirements. For a new building, the requirements are the same but when you are dealing with remodels or additions, the CBC only requires that the area of remodel or addition comply plus some improvement to the existing construction. ADA requirements are not triggered by construction requiring a permit and the requirements are driven by a judicial process. The city has to meet the same ADA requirements as any property owner for its own facilities, but really has no role in enforcing or helping with ADA compliance for other property owners.”

So business owners are still on their own, despite this much-heralded law.

Probably the best thing small businesses can do to protect themselves is to make a New Year’s resolution to “get ADA compliant in 2009.”

A good source of information about ADA compliance for small businesses is posted on a website for North Park Main Street, a San Diego business area which has taken a pro-active stance. The address is www.northparkmainstreet. com/articles/ada%20 compliance.htm.

CINDY FRAZIER is city editor of the Coastline Pilot. She can be contacted at (949) 494-2087 or [email protected].