Businesses Inaccessible to Handicapped Kept on Run by Paraplegic

Kornel Botosan says he has been so “humiliated, embarrassed and frustrated” by his inability to get into stores in Southern California that he has filed an average of more than a lawsuit a week seeking compensation for his treatment over the last year.

The 39-year-old Costa Mesa computer consultant charges that he has been prevented from entering about 70 Los Angeles, Orange and San Diego county businesses.

The alleged problem is always the same, whether at a bar in South Gate, a surf shop in Corona del Mar or a currency exchange in San Ysidro: The shops have barriers, often curbs, that Botosan, a paraplegic in a wheelchair, finds insurmountable.

Rather than quietly roll away and stew, as he said was once his habit, Botosan now files lawsuits in federal court demanding that the barriers be removed and that he be paid for inconvenience and emotional harm.

In suing so frequently, he has become a virtual one-man private enforcement brigade for the Americans with Disabilities Act, a civil rights law that held out the promise of equal access to commercial establishments when Congress passed it nearly a decade ago. Advocates for the disabled, however, say many businesses have not honored it.

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The sheer number of Botosan’s lawsuits--which anecdotal evidence suggests may be some sort of record--has irritated some judges and drawn hostility from adversaries, who charge that he is more interested in turning personal profits through quick settlements than in bringing about constructive changes.

But, counters Botosan, who has used a wheelchair since age 12 as the result of spinal cord damage doctors were never able to diagnose: “If that was true, I would settle all the cases without worrying about the compliance issue. The compliance issue is the stickler.”

Many of Botosan’s cases have been settled quickly for a few thousand dollars and the promise to make reasonable repairs, according to court records and interviews with attorneys.

The settlements are typically marked confidential at the request of Botosan’s lawyer, Mark D. Potter of San Diego, who has filed each of the cases, but one examined by The Times called for payment of $3,000, including attorney fees. Botosan testified last year in the only case in which he has been deposed that, in 1996, before he began bringing the suits, he made less than $20,000.

Many of Botosan’s targets have been proprietors of so-called mom and pop stores, who first learned that he had problems gaining access to their stores or bathrooms by reading about it in a lawsuit.

Botosan says he generally does not bother with informal complaints because he knows from experience that they do not work: “The only way to get them to fully comply is with a lawsuit.”

He says he sues mainly mom and pop stores because that is where he runs into the largest number of access problems.

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With more legal savvy, financial resources and marketing know-how, bigger businesses have been quicker to comply with the federal law that mandates access for the disabled when there is new construction or a major renovation, and requires access to older buildings to the extent that it is “readily achievable.” This phrase has been interpreted to mean changes that will not break the proprietor’s bank.

Putting aside the question of Botosan’s motives, the lawsuits he has filed call attention to a problem that many authorities believe remains huge.

In the absence of hard data, some consultants venture that a majority of commercial establishments still do not comply fully with the law.

James Raggio, general counsel for the federal agency that enforces disability access laws on federal property and in buildings erected with federal funds, is unwilling to go that far.

But he wonders whether continuing “spotty” compliance in the commercial sector is the result of ongoing ignorance of the law or conscious disregard for it.

One of Botosan’s targets, Becker Surfboards chief executive Dave Hollander, sheds some light on this question. He said he was naive about his obligations and taken aback and upset when he was sued for failure to maintain designated handicapped parking at a location he had leased from a bank three years before. “I can’t tell you how much time and money one faded handicapped parking spot has cost me,” he said.

John Parry, director of the American Bar Assn.’s Commission on Mental and Physical Disability Law, said such lawsuits are also a signal that the disabled are “less willing to ignore the obvious.”

For several years after the Americans with Disabilities Act passed, Parry said, few lawsuits on access matters were filed because many disabled activists felt it was both fair and politically prudent to let businesses, which had opposed the law, have a reasonable opportunity to comply with it.

There has been a recent upsurge in litigation as a sense has grown among the disabled that “enough time has passed that a backlash [against the bringing of suits] would be unreasonable,” Parry said. “Even smaller businesses have had nearly 10 years’ notice.”

Still, a backlash is something that, on a personal level, Botosan suggested he is concerned about. He declined to be photographed for this article, saying he was worried it would lead to his being “badgered.”

In passing the disabilities act, Congress foresaw a need for the same type of private enforcement efforts provided for in other types of civil rights laws.

Anticipating that an overworked, understaffed Department of Justice would have to pick its spots for enforcement, Congress gave private attorneys an incentive to take cases in the form of an ability to recoup attorneys fees if plaintiffs prevailed. Damages for pain and suffering are not available in the federal law, but are in similar state statutes.

The result has been the formation of a typical legal cottage industry, of which Botosan’s lawyer is a part.

Potter, 31, said he was a generalist looking for an area of practice a few years ago when he hired Botosan as his computer consultant.

Botosan, he said, began telling him of his frustration at not being able to get over curbs that frequently stood between him and cashiers at self-service gasoline stations and mini-marts. And the lawyer said, “I looked into it” and educated Botosan about his rights.

These days, Potter said of the man who is his most litigious client, “he complains about quite a few places, and whatever places he complains about, I take a look at it. . . . Sometimes there’s not a valid cause of action, because barriers might not be readily [removable]. . . . More often than not, it is a lawsuit.”

Potter said he sees himself as an “essential part of the independent living movement.”

But some consultants for the disabled question his methods.

“I met Mark because he attended . . . two of my seminars for architects and building officials,” said Michael Gibbens, who runs Production Consulting and Construction in Thousand Oaks and served as an expert witness against Botosan in at least one case.

“He said, ‘At some point, I might want to utilize you as an expert, because I intend to specialize in this area,’ ” Gibbens recalled. “He stated he was going to specialize in access to gas stations and miniature golf courses. . . . I asked him, ‘How do you specialize in those areas?’

“Maybe it’s naivete. But I thought you had to have a client who came to you with a problem, not pick an area and send a client out to be discriminated against.”

Potter acknowledged taking the classes and expressing interest in retaining Gibbens, but said that he mentioned golf courses only in a subsequent conversation about a specific case involving an amusement center that had an inaccessible miniature golf course layout.

Some of Potter’s adversaries also have harsh things to say about his practice.

Long Beach lawyer William Shibley charged in court papers that Potter and Botosan have “conspired to use the Americans with Disabilities Act . . . as a cash cow.”

One of Shibley’s clients is a 78-year-old widow who owns an old building in Long Beach where a neighborhood bar and some other stores are housed. Based on work by consultant Gibbens, Shibley estimated that it would cost his client $35,000 to bring her building into compliance. “She can’t afford it,” he said. The property only yields her $30,000 in annual income.

Shibley contends that Potter had an obligation to look into feasibility of repairs before filing suit.

But Potter in an interview said he did just that. He said that the $35,000 would bring the building up to new construction standards but goes far beyond what is required for old buildings like this one. Potter said he believes the building could be brought into compliance for $1,500.

“That guy doesn’t understand the law and he’s difficult to deal with,” said Potter of Shibley.

Typically, business owners or companies that insure them avoid locking horns to this extent.

Tim Bice, the lawyer for the landlord of a paging company in Bell, expressed their sentiment: “It was cheaper to throw some money at them than to fight.” Believing the settlement to be public record, Bice said his client paid $2,500 plus $10,000 to build a wheelchair ramp.

Stephen Rosenbaum, senior litigation attorney for the Disability Rights and Education Defense Fund, a nationally known Berkeley-based nonprofit organization, said there are two approaches to suing.

The public interest disability bar generally chooses its cases carefully, usually picking large businesses with patterns of noncompliance and giving them notice in advance that a suit is being contemplated. Then “you have more radical grass-roots activists. . . .

“People will always differ about the need for an individual suit,” Rosenbaum said. “But the underlying principle is that the only way you open up society other than through education is through litigation.”