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SAWHORSE
Restaurants sued over handicapped-access laws
By MICHAEL J. WILLIAMS mwilliams@californian.com | Posted: Saturday, September 24, 2011 5:30 pm
Las Palmas restaurant owner Jimmy Flores said he doesn't have a problem complying with disabled-access requirements.
He just doesn't like having to fork over thousands of dollars to the lawyer and his client who sued him over the issue.
"We're open targets," Flores said. "We're sitting ducks."
His business in Lake Elsinore is among a handful in the region recently hit with lawsuits stemming from state and federal requirements to provide adequate access to the people with disabilities, especially in regard to parking.
Typically, an attorney specializing in California's Title 24 disabled-access requirements and the federal Americans With Disabilities Act sends a letter to a business advising it of violations and seeking a settlement, while threatening a lawsuit.
"This guy comes in and says, 'Here's how much money I want,' and you know it's a shakedown," said Rosa Jean Thesing, who owns Rosa's Cantina in Temecula with her husband, Michael Thesing.
Rosa's, as well as the Swing Inn a block to the south on Old Town Front Street in Temecula, have been sued by a client represented by the same Northern California attorney.
"It's not about access and people getting into your facility ---- it's about extortion," Swing Inn owner Ken Rauton said.
Yet according to Willie Fontano, it's not about the money ---- it's about respect. That's why, Fontano said, he has sued Flores and other Riverside County businesses over access violations.
"I have sued maybe about four people and I've got nothing out of it except my self-respect, and that's my point of view," said Fontano, 63, of Hemet. "It gives me an outlet to be human. ... My intention is nothing more than to get self-respect."
Fontano said he must use a wheelchair because of hip problems.
He said he believes that because of his infirmity, his age and his being black, he is sometimes treated poorly by businesses, while they themselves are not complying with the law.
Court records indicate that his complaint against Flores is among a series of seven disabled-access lawsuits Fontano has filed in Riverside Superior Court, including actions against restaurants in Hemet, Riverside and Beaumont.
He said it has been so long since he visited Las Palmas that he doesn't remember any specific incident.
Yet, Fontano said, he is not hunting for violations.
"I don't look for them," he said. "They just jump out at me. ... Do (the police) look for you to give you a ticket?"
Legal headaches
The case against Flores cited numerous violations of state requirements, but the lawsuits against Rosa's and the Swing Inn were based on federal law and filed in U.S. District Court in Central California on behalf of Escondido resident Larry McIver by Chico attorney Lynn Hubbard.
McIver has muscular dystrophy and requires the use of an electric scooter when traveling, the complaint against Rosa's states.
It alleges that the restaurant had the wrong sign to identify a disabled parking space; that there were no disabled-access parking spaces available for vans; that no spaces were designated with a sign as van-accessible; that the spaces for the disabled had slopes and cross slopes exceeding a 2 percent grade; and that the language of a tow-away sign was incorrect.
Mike Thesing said he has spent $7,500 to retain a lawyer, and estimates that he could lose as much as $25,000 over the lawsuit.
Although he has fixed the signs, he said, the slope issue could require tearing up the parking area behind the restaurant, and the fix could create a flooding issue because the grade is intended for drainage.
Moreover, the Thesings contend that the grade is so gradual, it should not be a problem.
"I've never had a person who is handicapped have a problem getting into our place," Mike Thesing said.
Rauton declined to say how much he has spent on his lawyer, but estimates that the suit could cost him from $16,000 to $20,000.
He said one of the four violations alleged has to do with one wrong word on a tow-away sign at the restaurant, and another stems from the sign lacking the proper paint.
"The wording is not right and it's not reflective either, but nobody told us about it" before the suit, he said.
In Flores' case, he said he has spent several hundred dollars to put up the correct signs, restripe his handicapped parking spaces and correct some features inside the restaurant, including clearly designating a table and bar section for people with disabilities.
After consulting with the lawyer, he said, he intends to settle the case for what could amount to between $3,000 and $4,000, and is seeking to work out a payment plan.
"I have thousands of handicapped visitors who never complain," he said. "This man came here to find us (in violation). ... If I would have known, I would have carried him in if he'd have asked me. ... I would have fed him free for a year. Unfortunately ... they only want to eat money."
He and the other restaurant owners feel particularly victimized because they are struggling through a bad economy and the plaintiffs appear to be targeting the kind of businesses that can least afford to fight lawsuits.
McIver's attorney said, however, that he has little sympathy for the restaurant owners' complaints, since the basic laws have been around for at least two decades.
The problem, he said, is they don't look at the issue from the viewpoint of people in wheelchairs who can't safely leave their vehicles and get into businesses because the owners are flouting the law.
"I have several different defendants in Old (Town) Temecula that don't have disabled-friendly parking," he said. "I don't know why they do that. It's so simple."
Given the publicity over disabled-access lawsuits, he said it's hard to comprehend how a proprietor could not understand the implications.
"If they didn't know about it, they've followed the ostrich approach," he said. "They should have known about it by now because there's been tons of press about it."
Hubbard said he has practiced disabled-access law for 12 years and has personal experience with the issue because his wife uses a wheelchair.
He said he initially would issue warning letters, only to find they were completely ignored.
It isn't until businesses are sued that they pay attention, he said.
The way the laws are written, he said, requires going to court because enforcement officials can't act on private property.
"(The lawmakers) said, 'We want the people who are victimized to enforce it by themselves and we'll give them attorney fees when they win,'" Hubbard said. "It's disabled people who are going out and enforcing it."
Plea for relief
Out of frustration, Flores met with Assemblyman Kevin Jeffries' Chief of Staff Jeff Greene and Lake Elsinore City Manager Bob Brady to make them aware of the issue and to point out that there appear to be a number of such lawsuits targeting businesses in northern Lake Elsinore.
That section of the city already has numerous empty storefronts, a symptom of the economic climate.
The phenomenon of handicapped lawsuits being filed in waves inundating one particular area is not new.
In one highly publicized episode, San Diego attorney Theodore Pinnock launched a handicapped-access crusade in East San Diego County, filing lawsuits against more than 60 businesses in the historical mountain town of Julian.
Brian Andrews, the attorney representing Fontano, filed several suits directed at Whittier businesses, putting merchants there on the defensive in 2008, reports state.
Rauton said Pinnock targeted the Swing Inn and other Temecula businesses about six years ago. Since then, however, the handicapped laws were changed and tightened, unknown to many business owners, Greene said.
"It's a big problem and it happens all over the state," Greene said. "A couple of law firms specialize in what we call ADA extortion suits, where they look for extremely technical violations of the law and send damage letters threatening thousands of (dollars in) fines and inviting them to settle for less money. ... It has extremely little to do with improved access to the disabled and pretty much everything to do with making money."
Greene said legislation has been introduced in the past ---- most recently by state Sen. Bob Dutton, R-Rancho Cucamonga ---- in an attempt to require notices of correction to be sent to businesses, allowing time to fix problems before a lawsuit can be filed.
Rep. Duncan Hunter, R-El Cajon, submitted a similar bill to Congress. To date, however, legislative remedies have not succeeded.
"Businesses need to be warned that the standards have changed, and there is a group actively looking to shake them down for it," Greene said.
The possibility of a future legislative remedy does little to ease the pain of those business owners already slapped with lawsuits.
"The state of California has given them a license to steal from us, not at gunpoint, but at pen-point," Rauton said.
But according to Hubbard, that is untrue.
In fact, he said, legislation in 2008 allowed property owners to get their businesses certified as compliant or having a plan to become compliant through a certified access specialist, a strategy that would indemnify them against lawsuits.
"They can feel what they want, but here's the way it really is," he said. "If the regulations changed in 2008, we can go out and look and they probably didn't meet the code before it changed. They probably didn't meet the code 10 years before it changed. I'm amazed at the number of people who really don't care."
Call Michael J. Williams at 951-676-4315, ext. 2635.Copyright 2011 North County Times.
Read more: http://www.nctimes.com/news/local/swcounty/article_8bc8018c-afea-5487-b75e-840e5ee6b1b8.html#ixzz1YvO1CUcM
By MICHAEL J. WILLIAMS mwilliams@californian.com | Posted: Saturday, September 24, 2011 5:30 pm
Las Palmas restaurant owner Jimmy Flores said he doesn't have a problem complying with disabled-access requirements.
He just doesn't like having to fork over thousands of dollars to the lawyer and his client who sued him over the issue.
"We're open targets," Flores said. "We're sitting ducks."
His business in Lake Elsinore is among a handful in the region recently hit with lawsuits stemming from state and federal requirements to provide adequate access to the people with disabilities, especially in regard to parking.
Typically, an attorney specializing in California's Title 24 disabled-access requirements and the federal Americans With Disabilities Act sends a letter to a business advising it of violations and seeking a settlement, while threatening a lawsuit.
"This guy comes in and says, 'Here's how much money I want,' and you know it's a shakedown," said Rosa Jean Thesing, who owns Rosa's Cantina in Temecula with her husband, Michael Thesing.
Rosa's, as well as the Swing Inn a block to the south on Old Town Front Street in Temecula, have been sued by a client represented by the same Northern California attorney.
"It's not about access and people getting into your facility ---- it's about extortion," Swing Inn owner Ken Rauton said.
Yet according to Willie Fontano, it's not about the money ---- it's about respect. That's why, Fontano said, he has sued Flores and other Riverside County businesses over access violations.
"I have sued maybe about four people and I've got nothing out of it except my self-respect, and that's my point of view," said Fontano, 63, of Hemet. "It gives me an outlet to be human. ... My intention is nothing more than to get self-respect."
Fontano said he must use a wheelchair because of hip problems.
He said he believes that because of his infirmity, his age and his being black, he is sometimes treated poorly by businesses, while they themselves are not complying with the law.
Court records indicate that his complaint against Flores is among a series of seven disabled-access lawsuits Fontano has filed in Riverside Superior Court, including actions against restaurants in Hemet, Riverside and Beaumont.
He said it has been so long since he visited Las Palmas that he doesn't remember any specific incident.
Yet, Fontano said, he is not hunting for violations.
"I don't look for them," he said. "They just jump out at me. ... Do (the police) look for you to give you a ticket?"
Legal headaches
The case against Flores cited numerous violations of state requirements, but the lawsuits against Rosa's and the Swing Inn were based on federal law and filed in U.S. District Court in Central California on behalf of Escondido resident Larry McIver by Chico attorney Lynn Hubbard.
McIver has muscular dystrophy and requires the use of an electric scooter when traveling, the complaint against Rosa's states.
It alleges that the restaurant had the wrong sign to identify a disabled parking space; that there were no disabled-access parking spaces available for vans; that no spaces were designated with a sign as van-accessible; that the spaces for the disabled had slopes and cross slopes exceeding a 2 percent grade; and that the language of a tow-away sign was incorrect.
Mike Thesing said he has spent $7,500 to retain a lawyer, and estimates that he could lose as much as $25,000 over the lawsuit.
Although he has fixed the signs, he said, the slope issue could require tearing up the parking area behind the restaurant, and the fix could create a flooding issue because the grade is intended for drainage.
Moreover, the Thesings contend that the grade is so gradual, it should not be a problem.
"I've never had a person who is handicapped have a problem getting into our place," Mike Thesing said.
Rauton declined to say how much he has spent on his lawyer, but estimates that the suit could cost him from $16,000 to $20,000.
He said one of the four violations alleged has to do with one wrong word on a tow-away sign at the restaurant, and another stems from the sign lacking the proper paint.
"The wording is not right and it's not reflective either, but nobody told us about it" before the suit, he said.
In Flores' case, he said he has spent several hundred dollars to put up the correct signs, restripe his handicapped parking spaces and correct some features inside the restaurant, including clearly designating a table and bar section for people with disabilities.
After consulting with the lawyer, he said, he intends to settle the case for what could amount to between $3,000 and $4,000, and is seeking to work out a payment plan.
"I have thousands of handicapped visitors who never complain," he said. "This man came here to find us (in violation). ... If I would have known, I would have carried him in if he'd have asked me. ... I would have fed him free for a year. Unfortunately ... they only want to eat money."
He and the other restaurant owners feel particularly victimized because they are struggling through a bad economy and the plaintiffs appear to be targeting the kind of businesses that can least afford to fight lawsuits.
McIver's attorney said, however, that he has little sympathy for the restaurant owners' complaints, since the basic laws have been around for at least two decades.
The problem, he said, is they don't look at the issue from the viewpoint of people in wheelchairs who can't safely leave their vehicles and get into businesses because the owners are flouting the law.
"I have several different defendants in Old (Town) Temecula that don't have disabled-friendly parking," he said. "I don't know why they do that. It's so simple."
Given the publicity over disabled-access lawsuits, he said it's hard to comprehend how a proprietor could not understand the implications.
"If they didn't know about it, they've followed the ostrich approach," he said. "They should have known about it by now because there's been tons of press about it."
Hubbard said he has practiced disabled-access law for 12 years and has personal experience with the issue because his wife uses a wheelchair.
He said he initially would issue warning letters, only to find they were completely ignored.
It isn't until businesses are sued that they pay attention, he said.
The way the laws are written, he said, requires going to court because enforcement officials can't act on private property.
"(The lawmakers) said, 'We want the people who are victimized to enforce it by themselves and we'll give them attorney fees when they win,'" Hubbard said. "It's disabled people who are going out and enforcing it."
Plea for relief
Out of frustration, Flores met with Assemblyman Kevin Jeffries' Chief of Staff Jeff Greene and Lake Elsinore City Manager Bob Brady to make them aware of the issue and to point out that there appear to be a number of such lawsuits targeting businesses in northern Lake Elsinore.
That section of the city already has numerous empty storefronts, a symptom of the economic climate.
The phenomenon of handicapped lawsuits being filed in waves inundating one particular area is not new.
In one highly publicized episode, San Diego attorney Theodore Pinnock launched a handicapped-access crusade in East San Diego County, filing lawsuits against more than 60 businesses in the historical mountain town of Julian.
Brian Andrews, the attorney representing Fontano, filed several suits directed at Whittier businesses, putting merchants there on the defensive in 2008, reports state.
Rauton said Pinnock targeted the Swing Inn and other Temecula businesses about six years ago. Since then, however, the handicapped laws were changed and tightened, unknown to many business owners, Greene said.
"It's a big problem and it happens all over the state," Greene said. "A couple of law firms specialize in what we call ADA extortion suits, where they look for extremely technical violations of the law and send damage letters threatening thousands of (dollars in) fines and inviting them to settle for less money. ... It has extremely little to do with improved access to the disabled and pretty much everything to do with making money."
Greene said legislation has been introduced in the past ---- most recently by state Sen. Bob Dutton, R-Rancho Cucamonga ---- in an attempt to require notices of correction to be sent to businesses, allowing time to fix problems before a lawsuit can be filed.
Rep. Duncan Hunter, R-El Cajon, submitted a similar bill to Congress. To date, however, legislative remedies have not succeeded.
"Businesses need to be warned that the standards have changed, and there is a group actively looking to shake them down for it," Greene said.
The possibility of a future legislative remedy does little to ease the pain of those business owners already slapped with lawsuits.
"The state of California has given them a license to steal from us, not at gunpoint, but at pen-point," Rauton said.
But according to Hubbard, that is untrue.
In fact, he said, legislation in 2008 allowed property owners to get their businesses certified as compliant or having a plan to become compliant through a certified access specialist, a strategy that would indemnify them against lawsuits.
"They can feel what they want, but here's the way it really is," he said. "If the regulations changed in 2008, we can go out and look and they probably didn't meet the code before it changed. They probably didn't meet the code 10 years before it changed. I'm amazed at the number of people who really don't care."
Call Michael J. Williams at 951-676-4315, ext. 2635.Copyright 2011 North County Times.
Read more: http://www.nctimes.com/news/local/swcounty/article_8bc8018c-afea-5487-b75e-840e5ee6b1b8.html#ixzz1YvO1CUcM