mark handler
SAWHORSE
July 16th, 2010
By Lou Ponsi and Teri Sforza
http://taxdollars.ocregister.com/2010/07/16/no-handicapped-parking-6000-please-demand-letters-say/60765/
A few months ago, Michael Montandon of San Bernardino County pulled into the parking lot of Brea Brake and Radiator on Imperial Highway.
Brea Brake’s owner says business was slow, so there were lots of parking spots in the lot. But Montandon, a veteran who suffers from chronic obstructive pulmonary disease and drives down this way for treatment from the Veteran’s Administration, found no designated disabled parking spot in front of the business.
So he drove away.
And called his lawyer.
James Rutledge, who has owned Brea Brake and Radiator for 40 years, was one of a half-dozen or so Brea businesses stunned last month to receive demand letters from Montandon’s attorney. “Your property lacks parking reserved for persons with disabilities required by Federal Law as well as California’s Building Code,” say the letters, from San Diego attorney James C. Mason. “I have been instructed to initiate a civil action as a result of your violation of Federal and State disability access laws.”
Much has been written about the “cottage industry” that blossomed as lawyers and their disabled clients blanketed small businesses with suits over noncompliance with the Americans with Disabilities Act, and pocketed the proceeds.
The California Legislature tried to fix that problem in 2008 with SB 1608, a reform of the law “designed to promote and increase compliance with laws providing equal public access in places of business to individuals with disabilities, while reducing unwarranted litigation that does not advance that goal,” according to the California Chamber of Commerce.
Has it worked? The half-dozen Brea businesses that have received the letters might say no.
“If the person truly wanted access, they would have demanded access, not demanded money for lack of access,” said Sharon Wagner, CEO of the Brea Chamber of Commerce. “We do believe in access but the fact that you can send a check for $4,000 and there will be no claim … that is not OK.”
The letters state that failing to comply with the ADA is discrimination against the disabled, and each business “can be legally required to pay three times my client’s damages, but no less than $4,000.00 for each offense,” the letters say. “In addition, you can be ordered to make all appropriate modifications and pay my client’s attorney fees and costs.”
Montandon and Mason are not interested in seeking maximum damages “unless forced to do so,” the letter assures the business owners. Money can be better spent making the businesses accessible.
“We are willing to settle this matter as follows,” the letter says. “1. You will obtain an accessibility evaluation of the property…. 2. You will make all required repairs and accessibility barrier removals…3. You will pay the sum of $6,000.00 to reimburse my client for costs, attorney fees incurred and for damages. 4. We will refrain from filing a Complaint in the U.S. District Court…. ”
Rutledge, the brake shop’s owner, is aghast.“Its like legal extortion,” he said . “I don’t know if he ever came in here. He had no appointment and he is not a customer of mine…. It’s just a scam. It’s a total scam.”
Mason, the attorney who sent the letters, bristles at the charge.
“This is not a shakedown,” Mason said. “The primary focus of my practice is defending businesses in these cases. I’ve defended more than 200 of them.”
One of the recent battles was in Julian, where Mason represented dozens of businesses in the San Diego County tourist town known for its great apple pie from a “notorious” attorney who filed “nit-picky” lawsuits that made business owners cry, “Shakedown!”
Those businesses were in historic buildings constructed in the 1870s, so of course they weren’t wheelchair accessible. “We got it all resolved quite favorably,” Mason said, declining details because the settlements were confidential. “Most of the changes my clients had to make were things like rearranging racks inside the stores.”
But the cases involving Montandon are vastly different, Mason said.
He didn’t file lawsuits straight away; he asked the businesses first to get inspected, as per SB 1608. Montandon simply wants “a parking space properly configured with the right signage as close to the access entrance as possible. The ADA calls for that, the California building code calls for that, I’m sure city of Brea has adopted that,” Mason said.
Demand letters have also gone out to businesses in Redlands, and Mason represents other disabled clients pressing claims as well. He has settled some of the cases, he said, but is getting some “blowback” from businesses that “simply don’t seem to understand what their responsibilities are as a business that’s open to the public. You have to provide equal access to all your customers. Especially when it comes to access to get in. All my client wants to do is go inside and spend money at these businesses. That’s the rationale behind the ADA.”
People get angry, Mason said. He has had two death threats. But the dollar figures that so inflame people are simply mandatory statutory damages and attorneys fees. “The code sets minimum damages at $4,000 per incident, and some overreaching plaintiffs attorneys try to count up every ADA violation and multiply that by $4,000. That’s a shakedown. My analysis is, my client tried to access your business on one or two occasions and found no parking, lots full. There should have been a spot in front for him. That’s what this whole ADA is about.”
He takes serious offense to the “shakedown” accusation, he reiterated. “I’ve been all over the state, giving 50 seminars about the ADA requirements on my own dime, freely handing out publication spelling out exactly what businesses are required to do,” Mason said. “If people are willing to work and take a problem-solving approach to this, it’s easy and over with, they get the right answers and reliable information. That’s much much different than getting sued right off the bat, like most of the attorneys are doing in the cases I defend.”
He sends information on precisely how to comply with the law to the businesses who get the demand letters, he said. You can read those how-tos here: ADA Red Flags (2)… Figure 3B-19 Accessible Space…ISA Signs.
“That’s part of the protection (the new law, SB) 1608,” he continued. If you are a business, “you have to act proactively, and get the survey done. That entitles you time to remedy the situation. But that’s one of the reaons I’ve taken some of these plaintiffs cases. These small businesses, nobody follows up to try to gain more info about this. Then I’ll hear, ‘Oh boy, if I had only known.’ Well, the ADA has only been in effect since 1990. That’s 20 years. Certainly after 20 years, at least you could have a correctly set up disabled parking space for your customers.”
The Brea Chamber of Commerce “believes this action to be predatory” and urges businesses who have received a letter from Mason to contact Chamber CEO Wagner immediately at (714) 529-4938 or sharon@breachamber.com. The businesses will meet Tuesday to plan a collective response. They hope to meet with lawmakers soon.
Time, as the demand letters say, is of the essence.
By Lou Ponsi and Teri Sforza
http://taxdollars.ocregister.com/2010/07/16/no-handicapped-parking-6000-please-demand-letters-say/60765/
A few months ago, Michael Montandon of San Bernardino County pulled into the parking lot of Brea Brake and Radiator on Imperial Highway.
Brea Brake’s owner says business was slow, so there were lots of parking spots in the lot. But Montandon, a veteran who suffers from chronic obstructive pulmonary disease and drives down this way for treatment from the Veteran’s Administration, found no designated disabled parking spot in front of the business.
So he drove away.
And called his lawyer.
James Rutledge, who has owned Brea Brake and Radiator for 40 years, was one of a half-dozen or so Brea businesses stunned last month to receive demand letters from Montandon’s attorney. “Your property lacks parking reserved for persons with disabilities required by Federal Law as well as California’s Building Code,” say the letters, from San Diego attorney James C. Mason. “I have been instructed to initiate a civil action as a result of your violation of Federal and State disability access laws.”
Much has been written about the “cottage industry” that blossomed as lawyers and their disabled clients blanketed small businesses with suits over noncompliance with the Americans with Disabilities Act, and pocketed the proceeds.
The California Legislature tried to fix that problem in 2008 with SB 1608, a reform of the law “designed to promote and increase compliance with laws providing equal public access in places of business to individuals with disabilities, while reducing unwarranted litigation that does not advance that goal,” according to the California Chamber of Commerce.
Has it worked? The half-dozen Brea businesses that have received the letters might say no.
“If the person truly wanted access, they would have demanded access, not demanded money for lack of access,” said Sharon Wagner, CEO of the Brea Chamber of Commerce. “We do believe in access but the fact that you can send a check for $4,000 and there will be no claim … that is not OK.”
The letters state that failing to comply with the ADA is discrimination against the disabled, and each business “can be legally required to pay three times my client’s damages, but no less than $4,000.00 for each offense,” the letters say. “In addition, you can be ordered to make all appropriate modifications and pay my client’s attorney fees and costs.”
Montandon and Mason are not interested in seeking maximum damages “unless forced to do so,” the letter assures the business owners. Money can be better spent making the businesses accessible.
“We are willing to settle this matter as follows,” the letter says. “1. You will obtain an accessibility evaluation of the property…. 2. You will make all required repairs and accessibility barrier removals…3. You will pay the sum of $6,000.00 to reimburse my client for costs, attorney fees incurred and for damages. 4. We will refrain from filing a Complaint in the U.S. District Court…. ”
Rutledge, the brake shop’s owner, is aghast.“Its like legal extortion,” he said . “I don’t know if he ever came in here. He had no appointment and he is not a customer of mine…. It’s just a scam. It’s a total scam.”
Mason, the attorney who sent the letters, bristles at the charge.
“This is not a shakedown,” Mason said. “The primary focus of my practice is defending businesses in these cases. I’ve defended more than 200 of them.”
One of the recent battles was in Julian, where Mason represented dozens of businesses in the San Diego County tourist town known for its great apple pie from a “notorious” attorney who filed “nit-picky” lawsuits that made business owners cry, “Shakedown!”
Those businesses were in historic buildings constructed in the 1870s, so of course they weren’t wheelchair accessible. “We got it all resolved quite favorably,” Mason said, declining details because the settlements were confidential. “Most of the changes my clients had to make were things like rearranging racks inside the stores.”
But the cases involving Montandon are vastly different, Mason said.
He didn’t file lawsuits straight away; he asked the businesses first to get inspected, as per SB 1608. Montandon simply wants “a parking space properly configured with the right signage as close to the access entrance as possible. The ADA calls for that, the California building code calls for that, I’m sure city of Brea has adopted that,” Mason said.
Demand letters have also gone out to businesses in Redlands, and Mason represents other disabled clients pressing claims as well. He has settled some of the cases, he said, but is getting some “blowback” from businesses that “simply don’t seem to understand what their responsibilities are as a business that’s open to the public. You have to provide equal access to all your customers. Especially when it comes to access to get in. All my client wants to do is go inside and spend money at these businesses. That’s the rationale behind the ADA.”
People get angry, Mason said. He has had two death threats. But the dollar figures that so inflame people are simply mandatory statutory damages and attorneys fees. “The code sets minimum damages at $4,000 per incident, and some overreaching plaintiffs attorneys try to count up every ADA violation and multiply that by $4,000. That’s a shakedown. My analysis is, my client tried to access your business on one or two occasions and found no parking, lots full. There should have been a spot in front for him. That’s what this whole ADA is about.”
He takes serious offense to the “shakedown” accusation, he reiterated. “I’ve been all over the state, giving 50 seminars about the ADA requirements on my own dime, freely handing out publication spelling out exactly what businesses are required to do,” Mason said. “If people are willing to work and take a problem-solving approach to this, it’s easy and over with, they get the right answers and reliable information. That’s much much different than getting sued right off the bat, like most of the attorneys are doing in the cases I defend.”
He sends information on precisely how to comply with the law to the businesses who get the demand letters, he said. You can read those how-tos here: ADA Red Flags (2)… Figure 3B-19 Accessible Space…ISA Signs.
“That’s part of the protection (the new law, SB) 1608,” he continued. If you are a business, “you have to act proactively, and get the survey done. That entitles you time to remedy the situation. But that’s one of the reaons I’ve taken some of these plaintiffs cases. These small businesses, nobody follows up to try to gain more info about this. Then I’ll hear, ‘Oh boy, if I had only known.’ Well, the ADA has only been in effect since 1990. That’s 20 years. Certainly after 20 years, at least you could have a correctly set up disabled parking space for your customers.”
The Brea Chamber of Commerce “believes this action to be predatory” and urges businesses who have received a letter from Mason to contact Chamber CEO Wagner immediately at (714) 529-4938 or sharon@breachamber.com. The businesses will meet Tuesday to plan a collective response. They hope to meet with lawmakers soon.
Time, as the demand letters say, is of the essence.
