Small business owner gains legal savvy to fight access lawsuit
Eric Nordby decided to fight back when he was served with an American With Disabilities Act lawsuit he believes is frivolous.
The Auburn business owner of World Pub, Hilda’s Bakery & Elite Coffees and Little Belgium Deli said rather than settling the lawsuit filed by Carmichael-based attorney Scott Johnson for thousands of dollars or cleaning out his pockets to pay for legal counsele has a better solution. The entrepreneur and father of two is going to represent himself to stand up against what he believes is one of many frivolous lawsuits filed by Johnson across the region.
No court has ever found Johnson guilty of being a vexatious litigant, but by early this year he had filed 140 of the 200 lawsuits against businesses for disabilities act requirements in the Eastern District of California in the U.S. Courts for the Ninth Circuit.
With a little help from a friend who is a lawyer, some business law classes behind him and extra time studying law, Nordby said he believes he has enough of a case to beat Johnson.
He said with research along the way, it hasn’t been as difficult filing paperwork properly and responding in the matter as people might expect. He said that is partly because Johnson has so many cases in progress at any one time.
“It’s a lot easier than you think it would be really to play ball with him,” Nordby said. “I am going to keep pushing and appealing.”
Nordby said despite Johnson’s repeated claims that he always sends a letter notifying business owners or operators that they have access violations prior to filing a lawsuit against them; he never sent one to Nordby. In the lawsuit facing Nordby, Johnson even names the former business located at the site, A-Town Deli, as the defendant.
After leasing the deli from the building’s owners, Nordby said he made several improvements to it to make it accessible for people with disabilities.
He leveled and replaced the floors in the bathrooms and added handrails, but despite the improvements, Johnson claims the bathroom is still inches off from being in compliance with access regulations.
Nordby is also being sued for violations in a parking lot adjoining the building, despite the fact that he doesn’t lease or own the parking lot and most of his customers park in a city-owned lot directly across the street from the deli, which has handicapped parking. He added that he has never had a problem with his disabled customers accessing the restroom or dining at the deli since it opened in 2011.
“Why when I work 100 hours a week should this guy be able to come in and take money from my children?” Nordby said.
He added that he has six or seven other businesses planned for Auburn, but can’t concentrate on opening any more until the lawsuit is over.
Johnson was out of the country on vacation and was not available for comment on the story, according to his receptionist.
In prior Journal reports Johnson has said he files the lawsuits to help gain more access for people with disabilities, including him. He added that the law has been in existence for 20 years now, so businesses should know they have to comply with it.
Ty Rowe, president of Bootlegger’s Old Town Tavern and Grill in Auburn, said he recently settled a case with Johnson. He said the cost of legal fees, plus the settlement, totaled $15,000.
He said that while he goes out of his way to accommodate all of his customers, some of the Americans with Disabilities Act regulations would be nearly impossible to complete on the 1850 building he leases in Old Town Auburn. He added that one change he made in the men’s restroom to the door to make it more compliant has actually irritated many customers.
Rowe said he believes public places, such as libraries and schools should meet disabilities act requirements, however private businesses should only have to comply to the best of their ability.
He said despite a few currently proposed laws, he doesn’t think the issue is being expedited enough by lawmakers.
“We ended up settling on the advice of my lawyers to not be drawn out because of the way the economy is,” Rowe said. “I have testified twice down at the state capital. Our lawmakers don’t even bother to look up from their phones from where they are texting.”
Rowe said with the ever-changing disabilities act requirements it is unrealistic to expect small business owners to be able to afford making changes each year.
“Eventually at some point we should just stop paying him,” Rowe said. “When is enough enough? It’s probably the only way it’s going to get taken care of.”
Mohammad Ashraf, general manager of the Lincoln Way Jack-in-the-Box in Auburn, said the store was remodeled earlier this year. A construction foreman at the site, David Leahy, said earlier this year that the remodel would be completely compliant with the Americans with Disabilities Act. Ashraf said while the building was compliant, the remodel was part of a franchise-wide remodel policy.
“All the Jack-in-the-Box’s get remodeled. It had nothing to do with disabilities,” Ashraf said.
Nordby said the fact that Johnson tends to sue only mom-and-pop type operations, rather than corporations makes it even more difficult for small businesses to compete.
“I am going to keep pushing and appealing,” Nordby said. “Every bit of time I take up, he can’t hurt someone else.”