August 29, 2014

Two target Merced County businesses over ADA violations, costing tens of thousands

The third installment of our series, Taking a Stand v. Taking Advantage, focuses on two disabled men from Southern California who hit Merced County businesses with additional disability lawsuits.

Some call him a champion for the disabled. Others say he is an extortionist.

Whatever you call him, Cecil Shaw has sued hundreds of businesses across the state for what he alleges are violations of the Americans with Disabilities Act.

The Southern California resident took a swing at 10 Merced County businesses in his latest round of lawsuits, usually while driving through the Central Valley on his way to visit friends in Reno, according to court documents.

Shaw, who uses a wheelchair when traveling in public, rolled into Marie’s Mexican Kitchen in late March.

Owner Chris Chavez got slapped with a lawsuit a few months later. Shaw’s lawsuit claimed the restaurant lacked appropriate parking for the disabled, had a steep entrance, cracked or uneven pavement and no accessible route to the restroom.

So what would it take to rectify the situation? A $60,000 settlement, Chavez said.

“My jaw hit the ground,” Chavez told the Merced Sun-Star. “Your heart goes into your stomach. You can’t sleep. You can’t eat. You don’t know if it will close your doors.”

Chavez spent nearly $20,000 to fix the entrance of the 1930s building, lower the bar counter, install handicap-parking signs and paint blue lines. The entire process will cost $50,000, Chavez said, after attorney’s fees and the cash settlement.

But it all could have been prevented with one conversation, he said.

“I just wish we had a warning. I wish he talked to us first,” Chavez said. “I understand it was not compliant, but if someone had just come to us and said we have to fix it by a certain date, we would have done it.”

“It’s very unfortunate he had to do it this way,” he added. “We’re a small business and it really hurt us.”

Shaw’s attorney said “discussions don’t work” and he has zero sympathy for business owners such as Chavez. He has no problem suing thousands more businesses if it forces them to comply with the law, even if it means permanently shutting their doors.

“This law has been around since the ’90s and it’s terrible they haven’t complied,” said Randy Moore, Shaw’s San Jose-based attorney. “I’m not sympathetic with people who haven’t complied with the law after 20 years. We don’t need to file cases against people that are not justified. This is what the courts want us to do.”

Moore at first hesitated to disclose how many lawsuits he’s filed on behalf of Shaw, whom he called a “hero” for the community. When asked if more than 170 cases were filed, Moore said that’s not an unreasonable estimate.

“As long as Mr. Shaw is willing to file complaints, I will file complaints until he gets another 170 of them – or 10,000 of them – if that’s what it takes to make these businesses compliant,” Moore said. “We are advocates for the disabled, as is Mr. Shaw.”

Moore declined to answer questions about his hourly rate or the percentage he receives from cash settlements. He said the lawsuits aren’t just about fixing the violations. “I think these people should be punished for not complying.”

Attempts to reach Shaw by phone at his home in Hemet were unsuccessful.

‘Legal extortion’

Shaw is not the only Southern California man in a wheelchair to file ADA lawsuits in Merced County. Juan Moreno, a Lynwood resident, visited Shell gas stations on R Street and Martin Luther King Boulevard in Merced in February and sued them both.

Moreno has filed at least 375 other ADA cases, according to court documents.

Rick Smiley, general manager of Smiley’s Gas on West 16th Street and the Shell station on Martin Luther King Boulevard, was sued by both Shaw and Moreno in separate lawsuits against both his gas stations.

The gas stations, built in the 1960s and 1970s, posted signs saying attendants will provide “full service” to disabled individuals.

“I think it’s legal extortion, if you ask me,” said Smiley. “I’ve been in business for 45 years and I’ve never had one handicapped complaint.”

Smiley hired a company to provide an ADA assessment and is working on settling the two lawsuits.

“It’s something I really can’t afford to do, but to stay in business, I have no choice,” he explained. “It’s embarrassing that no one in our government can stop it. This has nothing to do with the handicapped. It’s a get-rich scheme.”

Not all businesses can afford to make ADA renovations and pay hefty cash settlements. Ming’s restaurant, a Los Banos favorite since before 1968, closed its doors in April after being sued by Shaw.

A voice message on the restaurant’s phone stated the closure was due to repairs needed to conform with the ADA law. Ming’s would have had to remodel the restroom and parking lot to be in compliance.

Seeking deficiencies

Although some attorneys label themselves advocates for the disabled, others look for ways to generate business from ADA lawsuits. One attorney allegedly even recruited a local engineer to join him in a venture.

Jim Xu, civil structural engineer with Golden Valley Engineering, helps local businesses comply with the ever-changing disability laws and avoid litigation by conducting certified ADA assessments.

But an attorney’s proposition to Xu was exactly the opposite idea.

“He said he wanted me to go look at businesses and find deficiencies so they can sue them. He would pay me for my time – $850 an hour,” Xu said. “I said ‘No, I’m not interested.’ What he was doing was wrong – it was strictly for money.”

According to Xu, the attorney told him he had a list of businesses to target in the Sacramento and Stockton areas. Xu said he believes the ADA law is “well-intentioned,” but is abused by attorneys looking to make a profit.

Longtime business owner Jose “Roy” Mercado found himself in the crossfire after Shaw visited the Bar B-Q Pit in Merced.

His business was sued by Shaw for improper parking, front entrance and restroom access. Mercado offered $3,000 to settle the case, but his proposal was rejected. Shaw wanted $75,000 from the G Street restaurant, according to court documents.

“I thought I was grandfathered in,” Mercado said. “We want to accommodate everybody. We’re not bad businesspeople. We will comply with anything, but give us a chance. Give us an opportunity.”

Mercado spent $6,500 on the restaurant’s parking lot and $10,000 in attorney’s fees. He recently submitted plans to the city of Merced to approve $15,000 in renovations to the restrooms.

Mercado said he wants to see more awareness of ADA requirements in the local business community. Unlike health or fire department inspections, there is no agency checking for ADA violations.

David Duncan, franchise owner of Country Waffles in Los Banos, agreed with Mercado that city or county agencies should get involved with providing ADA inspections and education. Country Waffles was sued by Shaw over similar allegations.

“From what I understand, these ADA measures change constantly,” Duncan said. “I’d like to see either the health department or someone from the city go from business to business and help them.”

Sending wrong message

One disabled resident said most Merced County businesses are doing everything they can to assist the disabled.

Leon “Sandy” Teague became an amputee a year ago, and has experienced no problems visiting his favorite spots. “I have been treated with utmost respect and courtesy,” he said in a letter. “People have gone out of their way to hold doors, carry bags, or other things.”

Suing small businesses without warning sends the wrong message, Teague said, and is not the way to promote change.

Although the law allows litigants to file lawsuits without notification, the engineer from Golden Valley Engineering said there are a few preventive measures businesses can take: get an ADA assessment every three years, and pay close attention to the parking lot in front of the building – that’s where serial litigants look first.

“If the parking lot doesn’t have the (blue) signs or striping, they know you probably don’t have the inside updated either,” Xu said. “If the outside is not right, you’re basically inviting them in.”

Other typical deficiencies include the front entrance and restrooms – both must be wide enough to provide maneuvering space and a certain slope. The height of seating and counters are other areas to check.

A lot of businesses think they are “grandfathered” in with the ADA law, Xu said, but they are not. An ADA assessment provides some protection because litigants can sue to fix the violations, but not for cash settlements. Golden Valley Engineering in Merced offers the service for about $1,000.

“The big cities are becoming aware,” Xu said, “so now they (serial litigants) are coming to the smaller communities. But some of the (ADA) revisions are really simple.”

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