Standing up to the disability police

Jennifer Roback Morse
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Posted: Apr 10, 2006 12:05 AM

Alpine, California,  is a peaceful rural community that lies at the foothills of the Viejas Mountains, east of San Diego. Bordering the Cleveland National Forest, this friendly village hardly seems a likely setting for a show-down over free enterprise, disabled rights and lawsuit abuse.

Mike McKany, owner of Alpine Liquor, received a letter informing him that he was being sued for three counts of violations of the Americans with Disabilities Act (ADA). He was informed that three different aggrieved customers were suing him for damages of $10,500 each. The letter, from attorney Theodore Pinnock, offered him the option of settling if he called that day. The attorney offered to begin negotiating down from the $10,500 for each count, as long as the first payment was received by the following Monday.

McKany was puzzled by the alleged violations. Two years ago, California Lottery officials had assured him that he met the requirements of the ADA. His business had to be in compliance with ADA as a precondition of being allowed to sell California lottery tickets. The suit alleged that Alpine Liquor’s restrooms were not handicapped accessible. The liquor store doesn’t even have a public restroom. Pinnock’s letter claimed that McKany’s business did not provide disabled parking. But his parking lot does have disabled parking.

But Mike told me by phone that his disabled customers don’t even use the designated handicapped parking spot. Instead, they pull right up in front of the store, where Mike, his father Joe, or another employee can easily see them. Doing business in such a small town as Alpine, Mike knows his regular customers. Most of his disabled customers never have to get out of the car, since somebody usually hops out of the store to help them.

So Mike wondered about these customers who were complaining that his business was inhospitable to disabled people. He looked up their names on the Internet. He found that at least one of them had an address in El Cajon, 15 miles away. Kind of a long way to go to the liquor store.

As it happens, at least thirty other Alpine businesses received identical letters from the same attorney with equally inapplicable complaints. This particular attorney, Theodore Pinnock, who has cerebral palsy and uses a wheelchair, has a reputation around San Diego County. Last year, he sent 67 letters to businesses in the historic town of Julian, alleging violations of ADA accessibility requirements. At that time, he demanded between $2,500 and $4,000 in attorneys fees from each of the businesses. Business owners in Julian got to the point that they dreaded the approach of anybody in a wheelchair.

The business owners of Alpine have decided that they aren’t going to take it lying down. But they have discovered that complying with the Americans with Disabilities Act is not a black and white issue. Businesses often don’t know whether they are in compliance. Besides, the state of California has its own accessibility rules, which are not always consistent with the federal requirements.

This uncertainty creates a loophole large enough for disability lawyers like Theodore Pinnock to drive their motorized wheelchairs through. Vague legal requirements leaves every business owner vulnerable to the threat of a lawsuit. For many small businesses, settling is more cost-effective than fighting, even if they are really in compliance.

This is banana republic governance. Make laws no one can comply with. Enforce the laws at random. Favor your friends by selectively looking the other way.
 
Resisting the lawyer’s demands for settlement means gambling that you are in fact in compliance. Mike McKany told me that the $10,000 he is being sued for would cover just about one month’s rent plus payroll. That is a lot of money to gamble.

The Divide and Conquer strategy is part of the evil genius of the frivolous lawsuit industry. No single business is inconvenienced enough to resist the law, or the unjust application of the law. The average business owner is already maxed out, just trying to keep his business going. Most of them will try to resolve the situation as quickly and as cheaply as possible. No one resists: Everyone pays. A perfect money-making formula.

The Americans with Disabilities Act adds the sympathy card to the lawsuit lottery. The ADA created a new class of Official Victims. We are not supposed to complain or criticize the poor hapless disabled people. Business is presumed guilty. After all, their only goal is to make money, while the ADA lawyer’s goal is to see justice done and accessibility achieved.

But Pinnock may have overplayed his hand. By sending everyone identical letters, he has stirred up a hornets’ nest of resistance. This case is not about helping the disabled. This is about one disabled person helping himself. If these business owners work together, they just may make it easier for Pinnock to go away than to collect "his" money.

American civil rights movements have been plagued by legalized extortion from the beginning. Jesse Jackson and his ilk have been threatening businesses with lawsuits and negative publicity for years. This country would be a better place today if a few businesses had stood up to Jesse Jackson twenty years ago. I hope the business owners of Alpine will draw a line in the sand and say "Enough!" to the exploitation of the ADA for private gain.

Author's note: If you are as angry about these frivolous lawsuits as I am, send Mike and his friends an e-mail at stopADAabuse@aol.com. Encourage them to stand up to one man’s greed and law suits run amok.