|By Loretta Kalb, The Sacramento Bee, Calif.|
Knight Ridder/Tribune Business News
July 21, 2004 - Owners of the Nimbus Winery have won a victory over a disabled Dixon man who sued to force the historic center to fix uneven parking pavement that made it difficult to navigate in his wheelchair.
On Tuesday, no one was celebrating the ruling by U.S. District Judge Garland E. Burrell Jr. in the case involving the Americans with Disabilities Act.
Not Russ Knauer, co-owner of the Nimbus Winery Shopping Mall in Sacramento. He said he spent tens of thousands of dollars fighting the suit.
Not plaintiff Ronald Wilson. He figures the effort to get businesses and local government to comply with the ADA will never end. He has filed so many ADA suits, he said, he has lost track of the total.
And not California business owners. They complain about their vulnerability to "drive-by" lawsuits by opportunistic attorneys who stand to make a buck as soon as they demonstrate any failure to comply with the ADA, no matter how small.
The disabilities act, established in 1990, gives civil rights protection to individuals with disabilities. Since its inception, tension has grown between business owners who say lawsuits often target minimal compliance violations, and people with disabilities who say many businesses wait until a suit is threatened to improve accessibility.
Stanford University law professor Mark Kelman, who tracks disability issues, said he believes business owners often prevail in such cases. He dismisses the idea that they suffer from nuisance suits.
"If there is a problem with anything, it's underenforcement" of the ADA, said Kelman. Most people who can't get access to a site do nothing, he added.
The 68-year-old Wilson said: "There is only one enforcement officer for ADA. That's the disabled person himself. The only way you can get anything done, unfortunately, is through a lawsuit."
The case likely won't end here, as Wilson's attorney plans to appeal, and the legal experts and parties involved say Burrell's ruling, issued late Monday, provides no sweeping interpretation that will limit such cases in the future.
Instead, Burrell said the plaintiff had failed to show how the parking lot repair was "readily achievable," a requirement for changing facilities that existed before the ADA's enactment.
Knauer said that when he was notified of problems, he immediately hired a consultant to make repairs at his site. The lawsuit came anyway, and as the case progressed, some complaints were resolved or dropped. In the end, only the parking lot problem remained, focused on the uneven and sloped parking pavement.
"We were targeted because we were large enough to pay $5,000 or $10,000 or $20,000," Knauer said. "They thought we were small enough that we wouldn't fight it."
Knauer said he chose to fight, however, "because we couldn't see where it would end."
"Even if we paid off the cash demands, they could turn around -- and find minor features to challenge," he said.
Knauer, his attorneys and several industry associations say they see patterns of predatory lawsuits.
"Typically, a restaurant owner gets a letter saying, 'We found you to be in violation of the ADA. You can either pay us now or go to court where you could be liable for fines and judgments that far exceed what we're asking for in settlement," said Jot Condie, president and chief executive of the 20,000-member California Restaurant Association.
Condie said he might hear from one restaurant in a month and then hear from more than a dozen in one week as a single law firm targets the businesses.
In fact, two restaurants at the Nimbus site settled suits, according to lawyers. But Knauer refused to give in, said his attorneys, Lizbeth West and Charles Post of Weintraub Genshlea Chediak Sproul.
"This was a perfect example that they were not willing to let it end," West said. "They continued to come up with more issues."
Wilson, who suffers from a painful nerve condition known as neuropathy, said he feels a sense of duty to fight inaccessibility. His numerous cases are handled by Chico attorney Lynn Hubbard and three other lawyers.
He receives money from the suits but won't say how much, using some of it to support a Dixon-based citizens group fighting for the rights of the disabled.
Hubbard handles hundreds of such cases each year and has carried about 10 for Wilson.
Asked about the concept that such suits are predatory, he said: If business owners "really feel that somebody is taking advantage of them," he said, "then why in the heck don't they go out and fix the place so everybody can enjoy it?"
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