Friday, December 30, 2005

Julian Businesses In Turmoil

SAN DIEGO -- It's a battle that's pitted a lawyer against a town's merchants. The dispute is over disability access in Julian.

At the Bell, Book and Candle Shop in Julian, business is brisk and owner Debbie Hickey couldn't be sadder.

"It's a bittersweet end," said Hickey.

The shop will close its doors next week. Ever since the October wildfires decimated local tourism, the shop's sales have been cut in half -- then the letters came.

She isn't alone. In all, 67 businesses got a letter from San Diego attorney Theodore Pinnock.

Pinnock, who uses a wheelchair, is threatening lawsuits over disability access -- a legal battle Hickey said she just couldn't afford.

"I don't have any fight in me. I've fought to stay in business for the last two years," said Hickey.

Her shop is the first casualty in a brewing war that's consumed a tranquil town full of historic buildings.

In the past months, some shop owners have started getting things up to code. Throughout Julian, disabled access signs are now the most popular in town. They are displayed prominently in storefronts. Most of the businesses named in the letters have banned together for a fight, 10News reported.

They must make the case they're compliant, versus a lawyer known for lawsuits against individual businesses.

Now, he's taking on an entire town, and shop owners worry about where he's going next.

"We just feel like we have to do all we can to stop him," said Pat Richardson, with Enrichments.

The gamble could be a costly one. Shopowners like Richardson said if they lose, money damages against them could also lead them to shut down.

While some shop owners have settled out of court, others vow to fight on.

Pinnock has responded with a class-action lawsuit. He was unreachable for comment with 10News.

Wednesday, December 28, 2005

Pastor Accuses San Diego Of Discriminating Against Churches

Does the City of San Diego discriminate against churches? It does, according to a lawsuit filed by Pastor Christopher Chadwick of the Canyon Ridge Baptist Church. The Church has been renting space for Sunday services at the Kearny Mesa Recreation Center for 3 years. As reported in a story by Channel 10 News and confirmed in court documents, the City charges the Church rates that are as much as 22 times the rates charged to other nonprofit organizations. An initial review of the City's leasing practices indicates that these policies violate the First Amendment of the U.S. Constitution and the Equal Protection Clause.

The fees charged by the City are based strictly on the classification of the type of organization. Groups like the Girl Scouts and Little League clubs are classified as "advisory groups" and are charged little or no fees. Associations such as Alcoholics Anonymous and Kiwanis are defined as "community groups" and pay slightly higher fees. "Private groups", which pay the highest fees, are defined as commercial or fundraising groups, or private schools and churches.

The most dramatic example of this fee structure can be seen in the fees charged for the use of the Auditorium/Gymnasium at the Kearny Mesa Recreation Center. As a "community group", Alcoholics Anonymous can rent the Auditorium/Gymnasium for as little as $1.88 per hour (based on a fee of $7.50 per meeting, up to 4 hours per meeting). As a "private group", a church must pay $41.50 per hour for the use of the same facility. By arbitrarily classifying a church as a "private group", the City is charging churches higher fees than other nonprofit groups in violation of the Equal Protection Clause.

The First Amendment does not allow government interference with religious beliefs and the Equal Protection Clause prohibits the government from discriminating against religious groups. There is no logical reason for the City of San Diego to charge higher fees just because the intended use of the facility is for church services. The City must reform its facility rental policies to make sure that all nonprofit groups are treated equally and fairly.

About the Author
Carl H. Starrett II has been a licensed attorney since 1993 and is a member in good standing with the California State Bar and the San Diego County Bar Association. Mr. Starrett practices in the areas of bankruptcy, business litigation, construction, corporate planning and debt collection.

Wednesday, December 21, 2005

Death of a Julian Business

Media attention in Southern California has recently focused on threats by San Diego attorney Theodore A. Pinnock to sue the entire community of Julian, CA over alleged handicapped access violations. As result of economic hardships caused by the October 2003 fires and the ADA litigation threatened by Mr. Pinnock, the owner of the Julian Bell, Book & Candle Shoppe has decided to close her business on January 3, 2006.

Julian was hit hard by the fires of October 2003. Nearly one quarter of the local residents lost their homes and tourism has never fully recovered. With businesses already suffering, the combination of Mr. Pinnock's settlement demands, potential attorney fees and unknown costs of addressing the alleged ADA violations were simply too much to bear. Mr. Pinnock's threatened litigation was the proverbial "straw that broke the camel's back" for the Julian Bell, Book & Candle Shoppe and possibly for other businesses in Julian. Business owners feel victimized and vulnerable.

This case is a shining example of the need to reform the Americans with Disabilities Act. The first step should be to require a notice alleged violations to the business owner and opportunity to voluntarily comply with the ADA. Individuals are encouraged to contact their legislators and help end ADA lawsuit abuse.

About the Author: Carl H. Starrett II has been a licensed attorney since 1993 and is a member in good standing with the California State Bar and the San Diego County Bar Association. Mr. Starrett practices in the areas of bankruptcy, business litigation, construction, corporate planning and debt collection.

Predatory Lawsuits Exploit the ADA

In a recent article, I discussed reforming the Americans with Disabilities Act ("ADA") because of a threat by San Diego attorney Theodore A. Pinnock to sue the entire community of Julian, CA over alleged handicapped access violations. Mr. Pinnock adopted a "pay me now, negotiate repairs later" posture in settlement discussions, causing some Julian businesses to consider shutting down.

San Diego County Supervisor Dianne Jacob publishes a quarter newsletter for her constituents called The Jacob Journal. In May 2005, Supervisor Jacob published an excellent article on predatory ADA lawsuits. The residents of Julian are her constituents. I am forced to wonder if Mr. Pinnock targeted Julian in response to Supervisor Jacob's views on ADA lawsuits. The article is reproduced its entirety below:

Predatory Lawsuits Exploit the ADA

Gary Clasen was shocked. The small business owner from La Mesa spent upwards of $8,000 to make the building which houses his catering kitchen - which is closed to the general - public accessible for people with disabilities.

Gary thought he was doing the right thing when he got slapped with a lawsuit alleging that his building wasn't accessible to a woman in a wheelchair. The language of the suit was aggressive: we'll see you in court.

Gary wanted the opportunity to tell his side of the story. If he was at fault, he was willing to make changes. But, there was no interest in mediation and to get to court would have cost Gary upwards of $20,000. It was far cheaper to settle than to go to trial, and that'Â’s just what opportunistic lawyers behind the predatory lawsuit wanted.

Gary is one of hundreds of local victims of a scam that exploits the landmark Americans with Disabilities Act (ADA) for financial gain. The swindlers behind the scam aren't interested in ensuring that people with disabilities can enter, use and exit facilities with relative ease. Instead, the scammers are extorting business owners out of settlement dollars in exchange for dropping expensive legal cases. The practice demeans the ADA, hurts businesses, clogs the courts and must be stopped.

State Senator Chuck Poochigian has authored legislation that aims to crack down on predatory ADA lawsuits by giving business owners a reasonable window of time to come into compliance with the requirements of the law. It is a bill that is long overdue and the County of San Diego, at my request, is glad to back it.

Legal minds agree that the ADA is highly technical and contains thousands of mandatory requirements that can be ove rwhelming to a mom-and-pop business. The specifications for flush handles on toilets, hand rails and door knobs are exacting, often outlined down to the very last inch.

Some say that the stricter rules encourage business owners to adhere to the ADA. But, because of the complexity of the regulations, minor and unintentional violations are commonplace, say inspectors. Some experts estimate that less than two percent of public buildings are in compliance.

That California is one of only three states which allows people injured by ADA violations to sue for attorney's fees and punitive damages adds further confusion to the law. Unethical lawyers have learned to capitalize on this murky situation and take advantage of businesses fearful of lawsuits.

Recently, seven struggling businesses in the Spring Valley area were hit with ADA-related lawsuits on the very same day. Each suit was identical, filed about two minutes apart in in Superior Court, one of the defendants said.

Last year, an investigation by a local news team identified one lawyer who filed 340 ADA lawsuits in our region. Many of businesses named in the suit complained that the plaintiffs had never stepped foot in their shops or stores. One plaintiff admitted as much to reporters saying he'd never shopped at any of the businesses named in the suit.

Some people with disabilities aren't happy with the attention that questionable suit cause.

"I think people with disabilities have been perceived as sort of predatory, there to make a buck," Louis Frick, executive director of Access Center of San Diego told The San Diego Union-Tribune last year. "While certainly there are those people, it is not all the people."

Taking advantage of the ADA for financial gain is especially despicable because this important law is designed to ensure access and equality to all. Senator Poochigian's legislation (SB 855) would restore integrity to the ADA. It allows victims to sue for legitimate injuries and flagrant abuse. It stops schemers from shaking down businesses who are eager and willing to open their doors to everyone.

Wednesday, December 14, 2005

Mediate, Don't Litigate

What is mediation?

A confidential meeting between disputing parties and a trained, neutral mediator who guides a discussion of issues toward a mutually acceptable agreement. Mediators do not take sides or decide how a dispute should be resolved.

Why should you try mediation?

1. It works - 85% agreement rate.
2. It's satisfying - you control outcome.
3. It's cost effective - avoids expense of litagation.
4. It's fast - can be scheduled in 7-10 days.
5. It's convenient - sites in the community.
6. It's confidential - keeps disputes private.
7. It prevents disputes from escalating into violence.
8. It's flexible - can be used before, during, or after a case has been filed in court.
9. It's established - provided by the San Diego Mediation Center, the largest provider of alternative dispute resolution services in the San Diego region since 1983.
10. It's clear - You have nothing to lose.

Disputes that can be mediated
  • Neighborhood: noise, parking lifestyles
    Landlord/Tenant: rent, security deposits, repairs
  • Family: divorce and custody, parent/teen differences
  • Community Associations: governance, maintenance
  • Business: consumer complaints, employment issues
  • Real Estate: property lines, sales, leases
  • Other: personal injury, public policy
How to arrange a mediation

625 Broadway, Suite 1221
San Diego, CA 92101
(619) 238-2400

Monday, December 12, 2005

Avoid Christmas Party Perils

By Kate Southam

Don't be fooled into letting your guard down at the office holiday bash. Have a great time but be careful not to rewrite the well worn phrase "tis the season to be jolly" to read "jolly embarrassed", "jolly reprimanded" or "jolly unemployed". Follow these tips and avoid the perils of the office Christmas party.

Just because the annual company bash is out of hours or even out of the office doesn't mean the rules of corporate behavior don't apply.

Alcohol has a funny way of making us lose our inhibitions and do things we regret. Getting into a verbal spat, locking lips with a colleague in full view of everyone, "dangerous dancing" and telling a manager or even a co worker what you really think of him or her is not smart.

Your company is legally obliged to provide a safe workplace even when throwing a party out of the office. The last thing they want is an injury claim because a drunken dancer gave a colleague a black eye. The office Christmas party has also given rise to many a sexual harassment claim as well.

On the other hand, don't even think about skipping the annual office bash. It's considered very poor form not to show up. Even if you only stay an hour, you must say "hi" to the boss and mingle with colleagues.

Also, read the signs. If the party is on a weeknight and the food is mostly high-fat carbohydrates like pizza, bread and dips then you're expected to put in a productive day at the office the next day nursing nothing more than a mild hangover.

Even if the party is on a Friday night, don't use the fact that you can sleep all day Saturday to throw caution to the wind and drink to excess at the office bash.

Have fun, bond with colleagues but leave the party before any damage is done - to you!Remember, dancing = good, wild crazy dancing = bad; being outgoing = good; becoming floorshow = bad.

Do NOT go for a "few drinks" before the party. Eat something and drink a glass of water between alcoholic beverages. Try to stay a drink or two behind everyone else.

Dress with caution. Plunging necklines, micro mini skirts, skin tight pants, outrageous or obscene tee shirts and other attention seeking wardrobe items might reveal more about you than anyone cares to know.

If you can't trust yourself not to get drunk, make a firm date with friends so you only spend enough time at the office party for two drinks.

If you feel yourself getting buzzed, avoid the boss, his executive assistant and other key managers. Circulate and talk to new people. Do not monopolize the boss, pitch an idea or ask for a pay rise.

Beware the "beer goggles". Remember the object of your new found desire after a few drinks and a bit of night lighting is the same person you did NOT find attractive for hundreds of office days under the full glare of the fluorescent light bulbs.

Resist the temptation to take a holiday or sick day after the party. It's good form to show up the next day.

Have fun and Merry Christmas/Happy Holidays!

Kate Southam
is the Editor of

Merry Christmas or Happy Holidays?

Much has been made in the media recently about whether or not there is a "culture war" regarding Christmas and Christianity. On one end of the spectrum, there are those who speak of "tolerance" and "inclusiveness". On the other end of the spectrum, there are those who see the use of terms like "Happy Holidays" as an extreme form of political correctness and an attempt to shove Christianity out of the public arena.

Consider the song "Here Comes Santa Claus". Written by Gene Autry, it contains a Christian message not often heard on the radio, in schools or on television. Until just a few weeks ago, I had never heard the last two stanzas (show in italics below below):

Here comes Santa Claus!
Here comes Santa Claus!
Right down Santa Claus Lane!
Vixen and Blitzen and all his reindeer
are pulling on the reins.
Bells are ringing, children singing;
All is merry and bright.
Hang your stockings and say your prayers,
'Cause Santa Claus comes tonight.

Here comes Santa Claus!
Here comes Santa Claus!
Right down Santa Claus Lane!
He's got a bag that is filled with toys
for the boys and girls again.
Hear those sleigh bells jingle jangle,
What a beautiful sight.
Jump in bed, cover up your head,
'Cause Santa Claus comes tonight

Here comes Santa Claus!
Here comes Santa Claus!
Right down Santa Claus Lane
He doesn't care if you're rich or poor
He loves you just the same
Santa Clause knows we're all God's Children
That makes everything right
So fill your hearts with Christmas cheer
'Cause Santa Claus comes tonight

Here comes Santa Claus!
Here comes Santa Claus!
Right down Santa Claus Lane!
He’ll come around when the chimes ring out
That it’s Christmas morn again
Peace on earth will come to all
If we just follow the light
So lets give thanks to the Lord above
That Santa Claus comes tonight!

There can be no question that retailers such as Wal-Mart, Sears and Target have changed their advertising in recent years to reflect this trend. There is a Christian holiday called Christmas when Christians celebrate the birth of Jesus and then there is an American holiday called Christmas that is about Santa Claus and reindeer and snowmen and getting together with family and friends and having parades. Whether you celebrate the Christian version of Christmas or the American version of Christmas, it is still Christmas to the large majority of Americans.

About the Author
Carl H. Starrett II has been a licensed attorney since 1993 and is a member in good standing with the California State Bar and the San Diego County Bar Association. Mr. Starrett practices in the areas of bankruptcy, business litigation, construction, corporate planning and debt collection.

Wednesday, December 07, 2005

Removing an Old Mechanic's Lien

Question: 10 months ago we purchased a new community home and we decided to refinance our mortgage. We found out that our home has a mechanic's lien on it. What can we do to get this lien off our house? It is holding up the loan officer's progress.

Answer: Although the builder and/or seller should take care of care of this, there is no guarantee that they will comply. If you contact the lien claimant and they won't voluntarily release the lien or reach a settlement, then you have several other options.

One option would be to purchase a mechanic's lien release bond. Once recorded, the mechanic's lien is automatically released and you would have clear title. Unfortunately, most bonding companies would require cash collateral in addition to the bond premium.

You can also file a petition with the court for removal of the lien. If the mechanic's lien is more than 90 days old and the lien claimant did not file a lawsuit to foreclose on the lien, the lien is null and void under Civil Code § 3144. If you prevail and the Court orders removal of the lien, the Court can also order the lien claimant to reimburse you for up to $2000 in attorney's fees. The Court must hold a hearing within 30 days of the filing date of the petition.

About the Author: Carl H. Starrett II has been a licensed attorney since 1993 and is a member in good standing with the California State Bar and the San Diego County Bar Association. Mr. Starrett practices in the areas of bankruptcy, business litigation, construction, corporate planning and debt collection.

Newdow Files Suit to Take National Motto Off Currency

Michael Newdow, who has already filed a suit to take "under God" out of the Pledge of Allegiance, is now suing to remove our national motto from our currency.

Newdow told the ACLU of Oklahoma that the national motto on U.S. currency is a violation of the separation of church and state. He is offended because he is an atheist. He wants to use the Federal courts to make his atheism the official religion of America.

Newdow filed in the 9th U.S. Circuit Court of Appeals which recently ruled that judges, not parents, have the final say in what will be taught school children concerning sex education. These same liberal judges supported Newdow and ruled that the phrase "under God" in the Pledge of Allegiance was unconstitutional. That suit was dismissed due to a technicality so Newdow sued again.

The 9th U.S. Circuit is expected to agree with Newdow. The case will then go to the U.S. Supreme Court for final action.

Help us secure one million signatures on the petition below to stop Newdow. Remember that only one person-Madalyn Murray O'Hair-was able to get prayer in schools banned. We must not allow one person-Newdow-to get our national motto removed from our currency by our silence.

During the last session of Congress, Representative Chip Pickering introduced a constitutional amendment to guarantee the right to use and recite the motto and the Pledge of Allegiance. Your petition will encourage Rep. Pickering to re-introduce his constitutional amendment in the present session of Congress and send a message to the liberal judges of the 9th U.S. Circuit.

Please act quickly, and forward this to friends and family.



Donald E. Wildmon, Founder and Chairman American Family Association