by BOB DORAN
ARMED WITH THE 10-YEAR-OLD AMERICANS WITH DISABILITIES ACT, attorneys for the disabled have been breaking down barriers to access -- and collecting big fees in the process. No one knows for sure exactly how many lawsuits have been filed on behalf of clients in Humboldt County since the law took effect in 1993 because they are usually settled out of court before they ever go to trial. And once a case is settled, the parties are usually prevented from commenting publicly about it.
What is clear is that the number of ADA lawsuits is increasing, the targets of the lawsuits are changing, and attorneys welcome these types of suits in part because they always get paid.
At first the defendants tended to be deep-pocket corporate chain stores, restaurants and motels, including those operated by franchisees. Among the known past lawsuit targets are Gottschalk's, Kentucky Fried Chicken, Marie Callender's, Days Inn and the former Thunderbird Inn (Best Western) -- all in Eureka. More recently defendants have included government agencies; there are pending lawsuits against the county, College of the Redwoods and the Humboldt Bay Harbor, Recreation and Conservation District. And at least one non-profit is on the list, the Eureka Chamber of Commerce.
But the lawsuits against locally owned, private businesses with no deep pockets -- including at least one mom-and-pop operation -- are what has the business community quaking in its boots. No one is immune. Defendants with pending or recently settled ADA action include the Broadway Cinema, Café Marina, Mad River Community Hospital -- and the tiny Café Waterfront in Old Town Eureka.
When an ADA suit lands on your desk, a business owner does not have a lot of options. You either negotiate and settle -- or you fight and then settle. In extremely rare cases, the battle makes it to court.
A court fight is rare for a very good reason. The cases are virtually bullet-proof -- impossible to fight -- and defendants absorb all of the costs: They pay their own attorney, the plaintiff's attorney, court costs and the cost to correct items out of compliance. The lawyer for the plaintiff does not work on a contingency basis, a suit where they only get a share of successful settlements. They are paid regardless as long as there is a demonstrated violation.
Dan Johnson, owner of Arcata-based Danco Builders, became embroiled in an ADA suit after his company built the Days Inn on Broadway in Eureka. The Justice Department got involved when its attorneys discovered a pattern in a series of ADA suits against Days Inn franchises.
"A suit was placed on all Days Inns in America," said Johnson. "What happened was the federal inspectors came out and inspected every Days Inn in the country. They came back with a list of things that didn't meet compliance."
After the local owner of the Days Inn in Eureka was served, he brought Johnson and architect George Keating into the suit. Johnson said he was not aware that the building was not in compliance.
"The hard part from our standpoint was that we built the building per the plans and specs, and the city of Eureka signed the building off. But the plans and specs didn't meet the damn code."
The Justice Department's suit detailed five violations of ADA regulations. Among the problems was the slope of the driveway at the entry. Danco and the Eureka inspector interpreted the rules one way, but the federal inspector saw it another way and the whole area had to be redone.
At least he thought it was done. But then Eureka attorney Jason Singleton (photo below) came into the picture and filed a second ADA suit on behalf of one of his clients when he determined there were additional things out of compliance.
"The stuff that Singleton brought forth was so minute," said Johnson. "One thing was a grab bar that was 1/8th of an inch too low. Another was the location of a light that blinks when the fire alarm is going off in case a person is deaf. I think it was supposed to be something like 48 inches from the floor, and it was 52.
"Then there was a problem with the table lamp," Johnson said. "The knob that you turn it on with was supposed to be 5/8ths of an inch in circumference for people who have arthritis and such, and it was only 3/8th of an inch."
Compared to the cost of the major changes required by the first suit, bringing the motel into compliance the second time was relatively inexpensive. But this time Johnson and the other defendants also had to pay Singleton.
"The cost of the repairs we had to do based on his lawsuit were minimal; I think it was $1,000. But we spent another $50,000 in attorney fees.
"It's extortion, there's no doubt about it," said Johnson. "It was my first experience in court, let alone the federal court. We went down to the federal court in San Francisco for the hearing. The judge came in and told us point blank when we started, `You may as well settle this because you're going to lose. You might as well not fight it.' But being the macho men that we think we are, we figured we were going to fight the sucker. We stayed until 8 o'clock at night going back and forth and we ended up losing."
"It's a bounty-hunter law," said Dick Smith, Johnson's attorney and the attorney for several other defendants in local ADA suits. "It can be enforced by the Justice Department, but it has become a cottage industry for private lawyers."
Singleton, whose business card is embossed with a wheelchair symbol, says his primary focus as an attorney is on accessibility issues. He sees himself as a defender of civil rights for the disabled. He didn't set out to specialize in disability law. After attending McKinleyville High School and studying law at John F. Kennedy University in Walnut Creek, he returned to Humboldt in 1994 to open a practice in civil litigation and personal injury work. In 1998 he was working on a case involving a fall in a parking lot.
"The ADA issues kind of bled over because the parking lot wasn't laid out as the ADA requires," said Singleton. "The issues were peripheral, really, to the personal injury suit. You couldn't say that her injury was caused by the ADA violation, but I was looking into that as an option. I started getting into that area of the law researching it and I realized that there was an opportunity there to make a difference for the disabled," he said.
"I think it's pretty obvious what the goal of the law is -- it's to make our society accessible to the disabled. The arguments I hear, people say, `Well, it's so expensive. All of this is so expensive. It's such a drain on our economy to make our businesses accessible.'
"My counter to that is, if our society is not accessible, these people have to be either on permanent public dole or institutionalized. There's a cost in not making it accessible."
Singleton knows that once he brings in an access consultant to lay out the facts and he files a lawsuit, he is going to win and he will get paid.
"There is very little in the way of the defense," he admits. "In most of other civil litigation there's some wiggle room. They're he said/she said cases where there are disputed issues of fact like who ran the red light. It's up to the jury to decide whose testimony to believe.
"These are not he said/she said cases. We have color photographs. Either the ramp is there or it's not. Either they were in violation or they were not. And those issues are not subject to dispute.
"In a personal injury suit, the insurance company knows they will eventually have to pay. And if it's a large claim, they may drag it out in litigation for two or three years just so they can collect the interest on the money for that much longer. You won't do that with an ADA suit because the defendant is responsible for [all] attorneys' fees. The meter is running.
"Most defendants try to settle right at the outset. And I want to facilitate that because the sooner they settle it, the less it costs the defendant and that leaves more resources for them to make the changes."
Those who choose to fight it out in court often fare far worse than Danco Builders. Minor Theater Corp.'s owner, David Phillips, found out the hard way. His case became a virtual tar baby that ended in costs that multiplied 10-fold by the time the case was settled.
When Phillips put the Broadway Cinema multiplex together, he designed it with a number of features for the disabled. He included handicapped parking spaces and ramps, wheelchair-accessible bathrooms, spaces in the theaters for wheelchairs and a sound system with headphone plug-ins for the hearing impaired.
"Every one of those details was challenged," said Phillips, who was sued in 1999 by Singleton on behalf of his client. For example, the telephone was placed too high -- by Pacific Bell -- and handicapped parking is still not close enough to the front door.
Phillips made the required changes and he hired a Los Angeles attorney, Greg Hurley, who not only specializes in fighting disability access suits, he wrote a book about it. Settlements were rejected, the stakes kept rising, and a protracted legal battle ensued.
In the end Phillips had to concede. According to Singleton, if Phillips had settled at the start he would have paid $8,000-$10,000 in fees and a settlement award of around $9,000. By Singleton's account, the extended battle cost the Minor Theater Corp. an additional $200,000.
Phillips said the problem with the ADA regulations is that there are gray areas and the only way to resolve them is to take a case to court. But "No one can take an ADA case to a jury. It's too expensive."
One notable exception is the most famous ADA case of all -- the one starring actor/tough guy Clint Eastwood.
The case -- Zum Brunnen v. Mission Ranch -- contended that in Eastwood's multimillion dollar conversion of a historic Monterey County dairy ranch into a resort, he failed to bring restrooms, the office entryway, the parking lot and guest rooms into compliance with ADA and California's Title 24.
Last summer Eastwood testified in Washington before a judicial subcommittee in support of a bill to modify ADA law so that businesses shown to be in violation of regulations would have a 90-day grace period to make changes before a suit could be filed.
"Who in America gives these lawyers the right to be the self-appointed vigilantes to enforce the law?" Eastwood said. "Why can we not just have some decency and give persons notice that there is some problem going on?"
The bill failed and Eastwood went home to have his day in court. Ultimately a jury found they were not sure that the wheelchair bound plaintiff ever intended on staying at the resort when she visited and took photographs of ADA violations. Eastwood won his case, but because he had subsequently made modifications to bring the facility into full compliance, he still has to pay some or all of the plaintiff's attorney fees -- as well as his own.
While the majority of Singleton's ADA suits dealt with private businesses and Title III (see box), two recent cases focus attention on Title II -- access to public buildings -- and Humboldt County. One involves access to the Department of Social Services building and the other enumerates barriers to access at the County Courthouse.
Kim Kerr, county risk manager, admits that administrators were taken by surprise.
"We're not sure if we are or are not in compliance," she said. "We don't have anybody who does this every day. It's very difficult to say [what needs to be done] unless you're an expert in the area.
"We've got very old buildings and there's a question about the extent that we have to upgrade them, to make them accessible," Kerr said. "Are we required, based on the standards of a building at the time it was built, to make the adjustments?"
A major problem faced by county supervisors is the fact that the board never completed a document known as a transitional plan as required by the ADA law when it went into effect in 1993. At a meeting Feb. 27, just 10 days ago, they approved a request for proposals to hire a company to assess disability compliance. With more than 100 county-owned structures, the assessment will be a big task.
"It's a requirement of the law," said Kerr, but in the meantime, "We don't have something to work off of right now" because the County never completed the plan.
Administrative Services Director Lindsey McWilliams, the former clerk, explained in a recent memo to the Board of Supervisors: "In the early 1990s the county embarked on a survey of facilities for ADA compliance. While a committee was formed and institutional memory recalls a great deal of work accomplished and plans formulated, the principals involved are no longer with the county and the intended product of the committee's work was not completed in full."
How much will it cost the county and where will the money come from?
"Once we get the report back we'll have an idea where we are financially," Kerr said.
Will having a plan protect the county from further lawsuits?
Not necessarily, Singleton warned.
"They will still be subject to suit if there are many barriers to access or if there are barriers to access that can be quickly and inexpensively eliminated and they didn't eliminate them promptly; for example, the door pressure on the doors that is quite stiff. Something like that is just an adjustment. It takes a mechanic 10 minutes to adjust the doors."
The Eureka Chamber of Commerce is learning the hard way about the ins and outs of the ADA. Attorney Thomas Frankovich, head of a San Francisco firm that specializes in disability law, recently filed suit against the chamber over alleged access violations at the visitor center on Broadway.
J. Warren Hockaday, chamber executive director, (photo below) has a stack of papers three inches thick on his desk, material he has gathered from the Internet. He's educating himself on access rules in part to form a response to the lawsuit and in part to be able to respond to calls from nervous business owners.
"What we're trying to do right now is gather as much information about individual situations and what people can and should do -- not only for those who have been notified they may be in violation but those who have not," he said. "I understand there are some 618 different standards that can apply."
What Hockaday is discovering is that there is a difference between rules for new buildings or expansion projects, and rules for buildings that were built before the regulations were in place.
"People here (at the chamber) were generally of the belief that since this is an old building, it doesn't necessarily fall within all of the compliance requirements of ADA," he said.
What he has discovered, however, is that all businesses must make "readily achievable" changes to come into compliance. In the case of the chamber, a hand-lettered "employees only" sign has appeared notifying travellers its restroom is off limits.
What are "readily achievable" changes?
"It has to do with the nature of the changes and the expense to the business," Singleton said. "For example a large corporation like Costco, for them not to spend $4,000, $5,000, $6,000 -- or $10,000 -- to eliminate the real significant barriers to access, that's ridiculous. That would be readily achievable for them because of their economic resources.
"If you're talking about a mom-and-pop grocery store and you're asking them to rip out a structural wall to widen the bathroom 3 inches, that's probably not readily achievable. You have to look at how severe of a barrier to access you're talking about, you have to look at the expense, and then you look at the economic resources of the business owner."
"No one here or among the membership of the chamber is opposed in the slightest to providing access to people with disabilities," said Hockaday. "Businesses are not in business to say, `I don't want you eating in my restaurant or buying something in my store.' Certainly here in our visitors center we want to welcome everyone who comes to the area.
"It's about a lack of clarity as to what people and businesses are required and expected to do," he said. "We want to provide information to our members, to keep businesses in business and keep them thriving. But when you're paying out $10,000, $20,000 or $30,000 settlements -- on something that you really had no idea was a violation -- it makes it tough to stay in business.
"We're trying to do what we should do and can do to improve the situation. If it's not enough, I guess we'll find out when the next attorney shows up with a tape measure."
When it comes to a building like the Waterfront Café, (photo at left) the "reasonably achievable" question gets very complicated. The building was constructed long before the ADA or even the state's companion law, Title 24, came into effect. In fact it is certified as a historic structure.
"I didn't even know I wasn't compliant," said Diane Barmore, who owns and operates the restaurant in Old Town. "I have a building that's on the National Register of Historic Places and my understanding has always been that I could not alter the exterior of the building."
Barmore runs two restaurants in Eureka, the Waterfront and Casa Blanca, a Mexican restaurant down the street.
"At this point Casa Blanca is not involved in the suit, but that's a great source of concern. I don't even know how I could do it [bring it into compliance]. It's a beautiful place and I'd love to continue to have it be a restaurant, but it's still running in the red. That's supposed to be a factor in these cases."
According to Barmore there were no complaints received preceding the lawsuit -- no calls, no letters.
"I was just flat out presented a lawsuit," she said.
Once served, she said she has had a difficult time finding someone who knew the requirements for a historical building.
"There is no agency who could tell me what I was supposed to do," she said.
"I want to do the right thing. I already have had an architect make plans for a ramp. It will be a hassle and it will be expensive, but I'm doing it because I want to comply. I just don't like to be bullied and threatened -- and that's how I feel.
"Now I know what I'm supposed to do and I'm doing it. But the hard part is I'm still being penalized," she said.
Barmore said she had planned on upgrading her refrigeration systems this year, replacing several cooling units in response to a Health Department report. Now she's not sure if she will be able to undertake a project requiring that kind of financial commitment.
"I can't even think about doing anything else right now because I don't know how much money this suit is going to take."
She paused for a second, then added, "I don't know if I want to be in business. That's really what this has done. I don't know if I can afford to be in business."
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