Activist sues Whitey’s Jolly Kone

Customers queue up at Whitey's Jolly Kone, 1300 Jefferson Boulevard, West Sacramento (News-Ledger file photo)

JULY 13, 2011

By Steve Marschke
News-Ledger Editor

The bathroom at Whitey’s Jolly Kone is closed to the public. But the fact that it’s closed is not as remarkable as the reason it’s closed: A Southport man who has sued dozens of Northern California businesses over compliance with the Americans with Disabilities Act has now targeted this drive-in burger stand on Jefferson Boulevard.

“He served us with papers in April,” said Paula Ericson, who owns Whitey’s with her husband, Steve. “He claimed in his papers that he tried to use our bathroom and couldn’t, and therefore he had to wet his pants. He never bothered to bring his concern to our attention, he just sued us.”

Whitey’s is a decades-old drive-up spot on the Jefferson Boulevard corridor, known for a menu including burgers, tacos and shakes. It’s got a modicum of fame, even, in the Sacramento region. In 2009, the place earned a Zagat review recommendation based on its value. It’s the only Zagat-recommended eatery in the city, and it’s popular with a wide cross-section of residents from Little Leaguers to politicians.

The resident who sued them, George Louie, couldn’t immediately be reached by the News-Ledger for comment – but the newspaper will provide his side of the story if it becomes possible. A quick Internet search of legal and newspaper web sites shows that Louie is reportedly a diabetic in his 60s who has lost a leg to that disease. Louie’s lawsuit against Whitey’s says he relies on a wheelchair.

Louie has sued dozens of businesses — including wineries in Napa, a Wells Fargo Bank, a motel in Marysville, and businesses in the Bay Area and northern Central Valley.

The lawsuits typically challenge a business’s access to the handicapped, and he asks for financial damages as permitted under the Americans With Disabilities Act (ADA).

Paula and Steve Ericson: fighting the lawsuit -- but closing the bathroom (News-Ledger file photo)

“He’s sued the City of West Sacramento, Costco, PG&E,” said Ericson. “The city settled with him. A lot of people think it’s easier to settle.” The lawsuit against Whitey’s – filed in federal court in Sacramento – includes a separate complaint against a Marysville restaurant about ADA access.

She said her husband received a call at Whitey’s from Louie, after they were served with the lawsuit.
“He said to Steve, ‘Hey bossman, this is George Louie, I’m suing you, how can we take care of this?’” said Paula Ericson. “He wanted money — he just wanted Steve to say how much. I was so angry I just told Steve we’re going to take care of this.”

The Ericsons haven’t made an offer. They have hired an attorney to fight the lawsuit.

They also believe Louie’s claim against them doesn’t have merit: their restaurant is not required to provide a public restroom at all, said Paula Ericson.

“The city (of West Sacramento) assured us we do not have to have a public restroom. We have no indoor seating and there’s no requirement for a public restroom here due to the small size of our building. Once we were sued, we immediately put up a sign saying there is no public restroom. If customers say ‘What do you mean? I’ve used it before,’ we say ‘I’m really sorry, we’re having difficulty with the ADA.’”

What’s the problem with this particular restroom?

“Our building sits on a one-foot foundation, so you have to step up, and the bathroom is too narrow,” she said. Upgrading the old building would not be cost-effective. So the bathroom remains closed to the public.

There remains to be a hearing on the Whitey’s case.

But some published reports say the Ericsons’ defense may get some help, indirectly, from Louie himself. According to the Marysville Appeal-Democrat, Louie is in bankruptcy proceedings, and a U.S. District Court judge has written that this affects his “standing” as a litigator and interrupts his ability to pursue a case like this.

  Coming to the News-Ledger’s print edition on July 20: Mr. Louie has been busy: he has targeted another sector of West Sacramento businesses in another recent ADA complaint.

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