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Missing Pieces

Is California's latest disability access law causing more lawsuits?

Back Longreads Aug 27, 2014 By Steven Yoder

With California leading the nation in ADA lawsuits, two years ago state legislators enacted a reform designed to thread the needle between those positions by educating more businesses about their responsibilities so they would make required access changes. Today, no one can say whether compliance has increased. But the number of ADA lawsuits has soared.

About 10 years ago, Ingrid Tischer applied for a job at a San Francisco nonprofit. She sailed through two interviews, and her final test was lunch with a senior staffer. They went to a small restaurant in the financial district, and halfway through the meal, Tischer, who has muscular dystrophy, excused herself to use the restroom. But in the hall, a stack of chairs and glassware blocked her walker. She maneuvered back to the dining room and finally flagged down a waiter to move everything so she could reach the bathroom door. When she did, it was too heavy for her to open. She had to ask for more help. By the time she returned to her table, 10 or 15 minutes had passed and she’d been knocked off her game. Plus, she had to apologize and explain her absence.

She didn’t get the job and says there’s no way to tell whether the incident hurt her chances. But access is the last thing she and others with disabilities should have to contend with when negotiating stressful situations that have enormous consequences, she says.

Most stakeholders involved in California’s debate over the Americans with Disabilities Act say they want businesses to comply with its rules. But they disagree over how to get there. Businesses would like a grace period in which to fix problems if an ADA-related legal complaint is filed against them. Disabilities groups say that would just encourage proprietors to continue ignoring the law.

With California leading the nation in ADA lawsuits, two years ago state legislators enacted a reform designed to thread the needle between those positions by educating more businesses about their responsibilities so they would make required access changes. Today, no one can say whether compliance has increased. But the number of ADA lawsuits has soared.

Targeting “Coercive” Demand Letters

In February 2012, San Diego defense attorney David Warren Peters set out to determine the percentage of federal ADA cases filed in California courts. His database search showed more than 40 percent of cases are brought in this state, though it has just 12 percent of the country’s population. Critics of California’s laws say there’s good reason: In most states, if plaintiffs win an ADA lawsuit, they’re entitled to have the access issue remedied and their attorneys’ fees paid. But here, plaintiffs can also tack on damages in both state and federal court cases — a minimum of $1,000 per violation — creating a financial incentive for lawsuits. Proponents of paying damages counter that businesses have had almost 25 years since the ADA passed to get compliant and that the threat of costly litigation forces them to do so.

In March 2012, several California small businesses that had been threatened with lawsuits called on Senator Dianne Feinstein (D-Calif.) to complain that ADA litigation was hurting their chances of survival. So she wrote a letter to California Senate leader Darrell Steinberg asking for action to reduce the number of coercive demand letters, the letters in which lawyers ask businesses to settle minor violations of the ADA by paying the plaintiff directly. Those payouts, Feinstein charged, do little to improve access for those with disabilities.

Steinberg and the legislature responded in September 2012 by passing Senate Bill 1186, which was designed to cut the number of ADA-related demand letters and encourage more voluntary business compliance. Among its provisions, the law bans plaintiffs’ lawyers from including in letters a demand for a specific amount of money and appropriates more state funds to educate business owners about the ADA.

But attorneys who defend businesses say the restriction on demand letters in SB 1186 has squeezed the problem in another direction: Lawyers are skipping the letters altogether. “Now, they’re going straight to federal court and suing,” says Sacramento defense attorney Rick Morin.

More Lawsuits Than Ever

Indeed, a search of federal court databases shows that the number of ADA cases filed in California federal courts rose 34 percent in the 17 months after SB 1186 took effect in January 2013.

Even in state courts, the pace of lawsuits appears to be increasing. According to data from the California Commission on Disability Access, 462 cases were filed in the first four months after the law was implemented — compared with 586 in the latest four months of data in the commission’s February report to the legislature. (No data are available on the number of lawsuits filed in state courts before SB 1186.)

And no one can say whether the law is achieving its other goal of getting more businesses to fix access problems.

Some advocates on both sides also think that the law’s premise is wrong — individual lawsuits shouldn’t be the primary mechanism for enforcing California’s disability access laws in the first place. “You’d think I was crazy if I suggested that for earthquake, fire or food safety, we were going to rely exclusively on a haphazard system of private lawsuits by individuals to make our state safe,” says Peters, the San Diego attorney.

Still, in the more than 20 months since the law was implemented, it may have made progress on its first goal. In 2013, plaintiffs’ lawyers sent 332 demand letters statewide, according to the commission, which under SB 1186 is supposed to receive copies. Director Stephan Castellanos thinks that number represents a sharp drop: “We’re still seeing some [letters], but we feel like, judging from what we thought was happening before, … we’re getting very few demand letters.” But he adds that the commission wasn’t charged with keeping track of demand letters before the law’s passage, so no firm pre-1186 data are available.

The law’s proponents might point to the Burger Barn in Pollock Pines as a small business that fixed problems without a lawsuit. Owner Laurie Tackett says she got a demand letter from Carmichael-based attorney Scott Johnson in early 2013 listing access issues she needed to address. She spent $15,000 to widen a bathroom, build an access ramp and make one of her booths accessible and another $1,500 for an access inspection. She didn’t have to make a payment for damages to Johnson since none was specified in the letter, she says. And she was lucky; her landlord split the cost with her, and she was able to borrow some money from her dad.

But some small businesses don’t survive even the threat of an ADA lawsuit. Across the street from the Burger Barn, the owners of the Pony Espresso restaurant also got a letter from Johnson. They decided to shut down, telling the Placerville Mountain Democrat that they couldn’t afford a lawyer.

Time for New Solutions?

Peters thinks the job of ADA enforcement should rest primarily with government. To renew a business license or pass a fire inspection, for example, he suggests a business should have to prove it’s passed a disability access inspection. Disabilities advocate Teresa Favuzzi of the California Foundation for Independent Living Centers would use a different approach, requiring that sellers of commercial buildings prove they’ve had their property inspected for disabilities access and have made the necessary modifications.

Mark Hedlund, communications director for Senator Steinberg, says he doesn’t know whether Steinberg and other legislators would support those ideas. “It really was a tough slog to get what we did,” Hedlund says. “We didn’t end up getting it done quite as comprehensively as we would’ve liked, but that’s legislation for you.”

Peters also would like to see the legislature reinstate a provision that SB 1186 repealed. Under the previous law, the commission was required to develop a simple master checklist reflecting all federal and California ADA requirements. “If the standards are really as clear and unambiguous as the advocates claim, why remove this requirement? We get three state-licensed experts in a room, and we get three different answers,” Peters says.

The reason that provision was taken out was, not surprisingly, money. Former commission chair Rocky Burks says he asked lawmakers to repeal it because they never gave the commission a budget big enough for the mammoth task of creating the list.

Burks also thinks compliance would increase if the legislature appropriated enough money to educate business owners about their ADA responsibilities. SB 1186 put that task at the top of the commission’s priorities. But in its report to the legislature, the commission acknowledges that the mission is being hindered by a limited budget.

Spreading the word may not achieve much without more financial incentives that support businesses to make access changes, which are often expensive. Ford’s Real Hamburgers in Sacramento’s Land Park neighborhood closed in September 2012 after Johnson served the store with a lawsuit for having a bathroom that didn’t allow wheelchair access. Owner Hank Vereschzagin told KTXL-TV that he was closing because he couldn’t afford the changes. The commission’s report acknowledges that money is an ongoing barrier for small businesses and that access to low-interest loans and more tax incentives could help.

And while everyone wants ADA compliance, no one wants to pay to enforce it, Favuzzi says. Until that changes, lawyers on both sides of access litigation can likely count on an endless stream of clients.

 

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