California adopted reforms last year to curb predatory disability lawsuits, but, as evidenced by more state and federal proposals, the problem remains.
The Americans with Disabilities Act, adopted in 1990, was enacted to ensure access for the disabled to public accommodations, but too often it has been abused to shake down businesses — particularly smaller businesses that are more inclined to pay off plaintiffs because they lack the means to engage in expensive litigation — for the most minor of violations that do not actually impede access at all.
Businesses can be sued because a bathroom mirror is an inch too high, a sign is missing or the paint on a disabled parking space has become too faded over time. There are numerous examples like the San Ramon gas station owner who was forced to install a shield under a bathroom sink to prevent burns to the legs of someone in a wheelchair — even though the bathroom does not even have hot water.
The problem is exacerbated here in California due to the Unruh Civil Rights Act, which incorporates provisions of the ADA but offers much higher fines — a minimum of $4,000 per infraction, versus $1,000 for the federal ADA — and requires payment of plaintiffs’ legal fees. So it should be no surprise that a cottage industry of ADA hustlers has sprung up in the Golden State, which now accounts for 40 percent of ADA cases nationwide but only 12 percent of the country’s disabled population.
Most claims are filed by a small number of serial plaintiffs (and their attorneys) who canvass strip malls and business parks looking for any technical excuse to threaten a business with many thousands of dollars in legal claims. In fact, from 2012 to 2014, 54 percent of all construction-related accessibility complaints in the state were filed by just two law firms, and 14 plaintiffs.
Assemblyman Adam Gray, D-Merced, proposed Assembly Bill 913 this year to give the courts more leeway to bar “extremely high-frequency litigants,” but it was shot down in committee in March.
In a positive step last year, California enacted Senate Bill 269 by state Sen. Richard Roth, D-Riverside, which gives small businesses some time to fix certain minor or technical ADA violations, though it was not comprehensive and is not enough, by itself, to put a stop to predatory ADA lawsuits.
At the federal level, Republican Reps. Jeff Denham of Turlock and Ted Poe of Texas each have bills that would provide businesses with a 120-day period to fix violations before a lawsuit could be filed.
Extortionate disability lawsuits tarnish the legitimate claims that genuinely seek redress for inadequate access. It is time to put the focus on fixing problems that actually prevent access rather than lining the pockets of a small number of “professional victims.”
(c)2017 the Contra Costa Times (Walnut Creek, Calif.)
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