Orange County Register
Wednesday, November 14, 2007
By Andrew Good
Sun Post News

Bars, restaurants face lawsuits: Part 2

Disabled rights advocates say suits are a necessary tool

For the defendants in a recent string of disabled access lawsuits, the plaintiff's motives seem less altruistic than court documents claim.

The owner of Silverado Wine and Spirits, one defendant, is not settling. Attorney Pat Caiazza represents the liquor store's owner, and said they've begun a preliminary investigation into the suit. He said when plaintiff Chris Langer visited the property, he simply drove up, called the store and complained about a lack of a disabled parking spot. Langer later sued the store for not having an accessible bathroom as well.

The store does have a disabled parking spot, Caiazza maintains, next to a beauty salon. It also has a bathroom, but the public is not allowed to use it, and Langer never stopped in the store anyway, making any charge of denied accessibility irrelevant, he said.

"These type of lawsuits just harass mom and pop small business owners," Caiazza said. "In older buildings, a person is not required to go out and spend hundreds of thousands of dollars to remake the building. If they can move a few boxes, then fine. But these types of suits are pure harassment."

The Outrigger, another one of the defendants, has already settled with Langer and has begun modifying its restroom. Owner Tom Poirier said most businesses don't want to go through the trouble of hiring an attorney; it's cheaper to settle and drop a few thousands dollars on a remodeled bathroom. "A lot of people don't want to touch the case," Poirier said. "Who wants to say you're against the handicapped?"

The Outrigger was built in 1946, and Poirier described the previous bathrooms as being "like a closet." He had to widen the doors to 36 inches and remodel the wall. Poirier didn't mind having the work done, but still feels the suit was a money-making scam.

According to ADA law, any remodeling done to a property requires it to be brought 100 percent up to code, said Christy Rudder, an employee with the Dayle McIntosh Center, a disabled rights group. For those like her, suits are an important enforcement tool - and really the only one they have.

The only weapon available

The Garden Grove-based Dayle McIntosh Center provides resources and education on ADA to the general public, and even advises businesses on how to comply with the law. Rudder said some cities in the country employ ADA officials who assess the properties of repeat offenders. But even then, they're just a figurehead who has no real power.

It takes a city ordinance that penalizes repeat offenders with something like the loss of a business license to make a difference. Until then, she said, the only weapon available to the disabled is lawsuits.

"You can be fined and fined, but you don't have to fix it," Rudder said. "So it opens (business owners) up to more suits."

That said, she concedes that frivolous suits do exist, and personally views suits as a "last resort" for owners who repeatedly ignore the law. She emphasizes polite communication, preferring to contact a business owner face-to-face, tell them she'd like to be a patron, and encourage them to comply with the law.

Legal experts are less forgiving.

"I don't necessarily agree that there's abuse going on," said Andrew Mudryk, director of litigation for southern California for Protection and Advocacy, Inc., another accessibility rights group. "In our approach, we'd definitely send a letter to the business owner and try to get them to fix the problem before suing. But if someone goes into a business and it's not accessible, I think that person has a right to sue."

The problem, he said, is the viewpoint that business owners don't have to consider the law. Outrage over what they term "frivolous lawsuits" is misdirected when it takes the focus off those violating the ADA, which has been in place for 17 years now.

"A wise business owner who's getting sued should change their business and not violate the law. That's one of the purposes of providing damages," Mudryk said. "What you see in the press lately are, in our view, isolated stories (of lawsuit abuse) without keeping the real focus on business owners not complying with the law.

"We want a barrier-free world."

Chamber of Commerce President Lynn Wood doesn't oppose that vision, but disagrees with the way many plaintiffs go about getting it.

"I think there just has to be some other procedure than 'We sue you.' A lot of these suits are mom and pop operations . when you sue them, they can't even afford to fix the issue," Wood said. "The system is broken and needs to be fixed."

Equal rights

Rudder used to own a scuba diving business in San Clemente, and is familiar with the challenges the local terrain and certain businesses pose to the disabled. For years, Sonny's Pizza was not an option for her. They had steps leading into the restaurant; after numerous complaints, a ramp was put in, which was still very steep. The bar scene was similarly inaccessible, she said. Many bars have high stools or raised tables that are above the heads of those in wheelchairs. She would ask bar owners to include an area with a lower table, or a shelf under the bar that flips out to accommodate those in a wheelchair.

"That way I can be a participant like anybody else, without having to be excluded in the corner of the room - which is what usually ends up happening," Rudder said.

San Clemente resident Cheryl Hopper, who also works at the Dayle McIntosh Center, agrees. She had a year-long battle to get into Café Calypso in the San Clemente Hotel; it might have gone faster with a suit, she said. There was a ramp at the entrance to the cafe, but it had a lip on the end. To get over it, she would have to pop up her wheelchair, but she worried she'd fall backwards and hit her head. After repeated complaints to the owners of the building, she contacted the city. They helped her by talking to the owners and having the lip removed (though the ramp is still very steep, and she's not comfortable using it).

"I think if someone had come along and said, 'This ramp is not accessible, and I'm going to file a lawsuit,' then the ramp probably would have been ADA compliant," Hopper said. "They did accommodate me, but it took over a year."

Both Hopper and Rudder agree that some abuse goes on. Hopper said those kinds of suits make disabled rights advocates look like "villains," and ultimately work against their cause. But the vast majority of the disabled population doesn't resort to lawsuits unless repeated efforts to contact a business owner go ignored.

"I know there's an attorney in LA who sends flyers in the mail saying, 'If you can't have access, call me," Hopper said. "I don't necessarily feel that that's right. He's making money off of people who are probably trying to make money, too.

"But I also know people who have sued San Clemente businesses because they frequented them, talked to the owner, asked them to comply, and they didn't do it."

"It's one or two individuals that might be (filing frivolous lawsuits)," Rudder said. "The 20 percent of the population who have disabilities, we're taking the fall for them."

Hopper added that just as some businesses are reluctant to comply with ADA law, others go out of there way to accommodate the disabled. Gordon James Grill and Carbonara's Trattoria Italiana have been especially considerate, she said.

"They have really made an attempt to be as accessible as possible," Hopper said. "And if there ever is a problem, I know they'll always move whatever they need to, tables or whatever, to accommodate me."

Up until now, the Chamber of Commerce hasn't strongly addressed the rights of the disabled within the business community, Wood said. After the persistent frustration of lawsuits she calls abusive, it might be necessary to drive that conversation.

"It's not a discussion we've had, but it's a good point," Wood said. "I guess bringing this all out to light is the start of it."

COMING FRIDAY: What's in the future for the relationship between disabled rights advocates and small business?

Contact the writer: 949-492-5128 or agood@ocregister.com