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ADA complaints: A racket or fair notice?
Rick King has come to terms with the threatening letter he received in the mail last week, but for the first 24 hours his anger was almost disabling.
King, the owner of Corning Auto Center on Solano Street, was one of six business and property owners to receive a letter from attorney James C. Mason demanding, at a price, each property become compliant with the Americans with Disabilities Act.
"Because you have not complied with those mandates, you can now be legally required to pay three times my client's damages, but no less than $4,000 for each offense ... " states the letter.
Mason said he is representing Duane Sceper, who he claims is a disabled person "who is a potential customer" of King's business, and was denied access to the business because it was in violation of ADA requirements.
"Your property did not have any of the required placement of or any parking spaces designated for disabled customers at all," Mason's letter to King states.
A message left on Mason's telephone answering machine was not returned.
"My family has been in business at this shop since 1990 and this is the first time anything like this has ever been brought up," King said. "All of the attorneys I have talked to, and there have been plenty of them, told me that while the letter isn't legally binding, it is fair warning and that I am better off settling now and becoming ADA compliant than to fight it."
If he doesn't settle and become compliant, Mason threatens a lawsuit.
"And that would end up costing me a whole lot more," King said.
Another business in town to receive a letter from Mason was REMAX American Dream Realty.
"This was a citywide shake down," said REMAX real estate agent Scott Davis. "We are looking into the legalities of this claim."
Some people refer to these frequent lawsuits over ADA access issues as "drive-by lawsuits" and "serial litigants."
Davis said he believes the threats aren't beneficial to the disabled population overall, but is a way for someone to take advantage of a good law to make a buck.
King said the other businesses to receive a letter like his were Video Tyme, Moller Realty, owner of the Dollar Tree business complex, local Farmer's Insurance business owner Jack Safford and his landlord Jack Oliveira.
All of the letters state Mason and his client's objective is "not to punish you but to compel compliance through the legal process mandated by the ADA and thereby carry out the intent of the law."
The ADA was enacted in 1990 when it was signed into law, and amended in 2008. Compliance can be complicated and varying depended on a number of factors, such as when a building was built.
King said he will have to pay money to satisfy Mason and his client, pay for an evaluation, pay for the ADA compliance changes and pay an inspector to certify he has complied.
"That really adds up and will cost me quite a bit, but it is still less than if it was filed as a lawsuit," he said.
The letter states Mason is willing to "settle this matter" if those receiving the letters obtain an accessibility evaluation within 60 days; make all required repairs and accessibility barrier removals within six months following the evaluation; pay the sum of $6,500 to reimburse his client for costs, attorney fees incurred and for damages; and refrain from filing a complaint in the US District Court.
"This is terrible," Oliveira said. "It's just like the old protection racket in Chicago. Pay the gangsters and they will protect you from having bricks thrown in your business window or having a firebomb thrown inside."
At this point Oliveira doesn't plan on responding to the letter and hasn't been in contact with an attorney on the subject.
"I don't plan of sending them one dime if I can help it," he said.
King said the entire issue has "opened a can of worms."
"Not only do I have to designate a handicapped parking spot, I will probably have to enlarge my door to the office, change the level of my office counter and who knows what else," he said.
King said he has heard of times when businesses didn't respond to the compliance threats as asked, and several disabled people would file lawsuits instead of just the one, or the complainant comes back time and time again suing over each and every thing out of noncompliance.
Although he plans on doing as the letter asks, King said he isn't "dropping this."
"I plan on talking to Sen. Doug LaMalfa and see what we can do to stop this sort of thing from happening again," he said.
LaMalfa, R-Richvale, said he is aware of the "big picture" on this issue, and said there have been attempts to pass legislation to address the problems King is running into right now.
"This is a cottage industry that is running rampant," LaMalfa said. "We need to find a way that allows businesses that have been found ADA insufficient, sufficient time to address the problem, without it putting them out of business due to the costs involved."
Assemblywoman Beth Gaines, R-Rocklin, introduced legislation in February to curb what LaMalafa believes are abuses in ADA-access litigation.
One measure, AB 1878, gives the state's small businesses an opportunity to correct an ADA violation before a lawsuit can be filed. The second measure would require the state architect to compile a list of all federal and state disability access regulations and any conflicts in state and federal regulations be identified.
According to the US Department of Justice, the ADA has achieved greater access for people with disabilities across the country through lawsuits and settlement agreements.
Sherie Abel of Corning, who is wheelchair-bound, has had to fight for access to get where she wants and needs to go on several occasions.
About one year ago she had to take on the California Northern Railroad and the city of Corning to get the railroad crossings in town smoothed out so she could cross them without getting her wheelchair stuck or tipping over.
On a day with triple-degree temperatures, her wheelchair got stuck in the tracks and she was there for quite a while before help came.
But her diligence paid off and the city and railroad company worked together to temporarily fix the crossings until funds come available for a permanent solution.
At that time Abel said, "When people listen to one another and work together, plain and simple solutions can be found."