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A question of access or excess

mark handler

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A question of access or excess

By Michael Fitzgerald

http://www.recordnet.com/apps/pbcs.dll/article?AID=/20111007/A_NEWS0803/110070330/-1/A_NEWS04

Record Columnist

October 07, 2011 12:00 AM

In 2009, a disabled attorney named Scott N. Johnson began notifying Stockton businesses that he would sue them if they didn't remove barriers to his wheelchair.

He meant business - his business.

Johnson, 47, of Carmichael has sued hundreds of businesses for violations of the federal Americans with Disability Act and its state counterpart. Violations he says he personally encountered.

"I'll be a quadriplegic for the rest of my life," said Johnson, who was disabled by a drunken driver in 1981. "But when you add to that coming across architectural barriers - which makes life even harder - that's something I can do something about."

Since Johnson began peppering Stockton businesses, the recession has dragged on. Many small business have gone under; others are just hanging on.

But Johnson, if anything, has intensified his efforts in Stockton, Lodi and other cities.

Business, for him, is just fine. "I do have a lot of lawsuits," Johnson said. "I'm an attorney. That's what attorneys do. Attorneys make a good living."

Johnson is his own best client. He claims he encounters illegal barriers in the course of far-ranging travels. Perhaps he does. But few people from Carmichael find their way to the remote corners of as many un-touristy cities as he does.

"I'm just following my nose," Johnson insisted.

Business owners, however, say they have never seen him. Many believe he sends surrogates, or takes virtual tours using Google Maps. That may be legal. But Johnson's claim he encounters discrimination is weakened if he goes looking for it for fun and profit.

"We are afraid of being sued by a man who has never entered our building," said Caterina "Cat" Anguzza, manager of Bigfellows Sandwich Parlor on Wilson Way and fiancé of the owner.

Bigfellows has 1.5 employees, rising food costs and rising utility bills. Its owners were recently slammed with a $4,000 cost when thieves stole copper wire from their refrigerator's compressor.

"I work 10 hours a day, six days a week, and I'm lucky if we're turning a profit," Anguzza said.

Johnson's letter warns Bigfellows it lacks handicapped parking. Also accessible bathrooms. It gives Bigfellows 60 days to prove they are fixing violations - or else.

In his defense, Johnson points out the law does not oblige him to send warning letters. He could sue straightaway. He gives violators a chance to fix things.

"Fix it and there's no lawsuit, and they don't owe me a penny," Johnson said.

They don't owe him a penny - but the ADA modifications he demands could run into the thousands. Even tens of thousands.

"I might have to take a loan out to fix my bathrooms," Anguzza said. "I don't know how we're going to do that."

Johnson's method of issuing warnings and resolving some complaints out of court may be why his foes have failed to get him declared a vexatious litigant. Courts restrict such people's right to sue.

Johnson apparently has found a niche - and a "good living" - suing only those who ignore him.

In my opinion, one of the vexing flaws in the ADA is that it is enforced not by federal inspectors but by serial litigators such as Johnson. He's a self-appointed mini-attorney general.

There are other flaws. Federal ADA does not provide attorney's fees to winners; state law does, making litigation lucrative. And complicated federal, state and local access laws often don't jibe, making compliance bewildering.

"There aren't many people, even architects, who are able to say you've got all the i's dotted and t's crossed to ADA compliance," said Elizabeth Milito, senior executive counsel for the National Federation of Independent Businesses. "It's so easy to be out of compliance."

A whole cottage industry in certified ADA inspectors has sprung up. The California State Architect's website at cab.ca.gov/ lists them.

Anguzza: "I've got to come up with $1,000 for an inspector and all it's going to get us is 'This is what you're going to need,' " she complained. "It's not even going to help me to with cost and repairs."

ADA law includes a "hardship" clause that enables business owners to do now only what they can afford. As long as business owners submit a timeline for doing everything required, Johnson does not sue.

Johnson said his work has fans: disabled people who have been waiting for businesses to comply with the ADA since it was enacted in 1990.

"Every time an article runs, I get calls saying, 'Hey, thanks, Johnson! Keep up the good work.' "

But Bigfellows owner Lance Kimes feels unjustly put-upon.

"If I had to deal with more people like Mr. Johnson," Kimes said, "I think I would just throw in the towel and go to another state."

Contact columnist Michael Fitzgerald at (209) 546-8270 or michaelf@recordnet.com. Visit his blog at recordnet.com/fitzgeraldblog.
 
mark handler said:
"If I had to deal with more people like Mr. Johnson," Kimes said, "I think I would just throw in the towel and go to another state."
I.e. one with toothless enforcement.
 
brudgers said:
I.e. one with toothless enforcement.
I.e.where the Federal goverment enforce their own laws.

Mr. Johnson could help others in other states by filing a complaint with the DOJ he just won't make a "good living" at it.
 
mtlogcabin said:
I.e.where the Federal goverment enforce their own laws. Mr. Johnson could help others in other states by filing a complaint with the DOJ he just won't make a "good living" at it.
Well yes, and that is absurd only to the extent that the businesses being sued could also be expected to give away their products and services without charging for them.
 
brudgers said:
Well yes, and that is absurd only to the extent that the businesses being sued could also be expected to give away their products and services without charging for them.
What is so absurd about asking Mr. Johnson to follow the federal law as written? That is what you and Mark and yes even me want the business/building owners to do. Follow the ADA requirements. It is the methods used to bring about compliance we disagree on.
 
mtlogcabin said:
What is so absurd about asking Mr. Johnson to follow the federal law as written? That is what you and Mark and yes even me want the business/building owners to do. Follow the ADA requirements. It is the methods used to bring about compliance we disagree on.
WE............Are you sure, we disagree
 
mtlogcabin said:
What is so absurd about asking Mr. Johnson to follow the federal law as written? That is what you and Mark and yes even me want the business/building owners to do. Follow the ADA requirements. It is the methods used to bring about compliance we disagree on.
No, it is the existence or nonexistence of disincentives for non-compliance about which we disagree.
 
Michael Fitzgerald said:
"There aren't many people, even architects, who are able to say you've got all the i's dotted and t's crossed to ADA compliance," said Elizabeth Milito, senior executive counsel for the National Federation of Independent Businesses. "It's so easy to be out of compliance."

A whole cottage industry in certified ADA inspectors has sprung up. The California State Architect's website at cab.ca.gov/ lists them.
Architect's should be able to say your accessibility i's are dotted and t's are crossed...There are even small business packages outlining how to meet compliance. The information is there if the small business are willing to look for it, let alone Mr. Fitzgerald.

Michael Fitzgerald said:
ADA law includes a "hardship" clause that enables business owners to do now only what they can afford. As long as business owners submit a timeline for doing everything required, Johnson does not sue.
"most unreasonable he is," posited yoda to the young padawan.
 
Papio Bldg Dept said:
Architect's should be able to say your accessibility i's are dotted and t's are crossed...There are even small business packages outlining how to meet compliance. The information is there if the small business are willing to look for it, let alone Mr. Fitzgerald. "most unreasonable he is," posited yoda to the young padawan.
Sadly, Most Architects are lacking in accessibility knowledge
 
mtlogcabin said:
I.e.where the Federal goverment enforce their own laws.
Sort of sounds like the immigration laws doesn't it? The Federal government passes laws but really does very little to enforce them. Compared to the number of violations of the ADA regulations the number of cases pursued by the DOJ is ridiculously low. The cases that they have bothered pursuing our only against major corporations, they really don't worry about the real reasons the ADA was enacted. Until it becomes simpler to force compliance the ADA is just a bunch of paper!
 
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