LEZLIE STERLING / lsterling@sacbee.com

Rep. Dan Lungren, R-Gold River, left, sits with Tom Scott of California Citizens Against Lawsuit Abuse in a discussion of ADA lawsuits with the Sacramento Metro Chamber earlier this month.

Disability-access legal threats spur legislation to protect business

Published: Monday, Jun. 25, 2012 - 12:00 am | Page 1A
Last Modified: Tuesday, Jun. 26, 2012 - 12:14 pm

The handful of proposals aimed at protecting California businesses from disability- access lawsuits all seemed destined for the same fate.

The bills, offered by Republicans, were considered dead on arrival in the Democratic-controlled Legislature.

Then Democratic U.S. Sen. Dianne Feinstein got involved.

The longtime senator penned a letter to Senate President Pro Tem Darrell Steinberg in March, urging the Legislature to address concerns that a cottage industry of attorneys is profiting from complaints over minor or technical violations of California's version of the Americans with Disabilities Act.

"I proudly support the ADA, and the ability it has given to people with special needs to have access to the facilities and services they require to lead healthy, productive lives," Feinstein, citing media coverage and constituent complaints about the issue, wrote in a March letter. "However, in today's difficult economic environment, I am troubled by reports that these lawsuits may unfairly and unnecessarily threaten the viability of some small businesses in our state."

That call to action, coupled with ongoing pressure from business and anti-lawsuit groups about highlighting the financial toll the lawsuits take during a down economy, led to a revival of the issue at the state Capitol.

Steinberg signed on as a co-author of ADA lawsuit legislation introduced by Sen. Bob Dutton, R-Rancho Cucamonga, a move that allowed an amended version of the bill to move through the upper house.

The Sacramento Democrat said he hopes ongoing negotiations produce a bill that results in more businesses and facilities fixing alleged access issues without facing costly lawsuits and demand letters.

"These are great laws, these are vitally important laws and it's not a question of weakening the laws, it's a question of making them even better and distinguishing from … denial of access, denial of opportunity to be able to use a public or private facility and some of the stuff we're seeing around the state which is suing not to increase access but suing to leverage thousands of dollars in quick settlements," he said.

While California's system for awarding monetary damages for ADA violations makes it a hot spot for such lawsuits, the issue is also being pushed on the federal level. Rep. Dan Lungren, R-Gold River, has introduced federal legislation to give businesses a "right to cure" violations before a lawsuit is filed.

"I think when you have a downturn in the economy, we're more pronounced here in California, those things which really have negative impact on small business just get more attention," Lungren said of interest in the issue.

Senate Bill 1186, the Dutton-Steinberg proposal, is aimed at curbing the use of so-called demand letters that threaten to file a lawsuit unless the alleged violator agrees to pay large sums to settle out of court. It also requires sending notice of the alleged violation 30 days before a lawsuit can be filed.

Backers say the proposal will cut down on frivolous lawsuits, many of which are filed by the same few attorneys, while giving businesses more tools to meet the standards.

They say other legislative fixes haven't done enough to slow the filing of what are seen as predatory lawsuits. A major compromise reached in 2008 created a commission to review the law and fast-track review of complaints when the targeted business or facility has been inspected for ADA compliance issues. But if anything, they say, the number of lawsuits has increased.

But advocates for the disabled say a broad approach to curbing such lawsuits could make it more difficult to fight legitimate access issues. They worry that businesses will continue to ignore the standards, many of which have been on the books for decades, until they get a letter.

"It shifts the incentive for businesses or other entities to make sure that they're accessible to people with disabilities because they won't really have any reason to be accessible until somebody gets around to giving people notice," said Margaret Johnson, advocacy director for California Disability Rights.

Johnson, who uses a wheelchair, said even seemingly minor violations of the law, such as a parking space a few inches too narrow or a ramp a few degrees too steep, can restrict access.

"Half the places that I see or attempt to go have some barrier that makes it either impossible or extremely difficult for me to use it," she said, noting that many businesses ignore her requests to fix the issues.

Critics of the current level of lawsuits agree that full compliance is an issue.

Lawyers Against Lawsuit Abuse CEO and general counsel David Warren Peters estimates that 98 percent of businesses in the state aren't up to code.

But one reason for the low compliance rate, he says, is that many lawsuits and demand letters filed under the current rules result in monetary settlements but no requirement to fix the access issues.

"We have made a situation where this is more profitable than narcotics ... but it's not leading to significant accessibility," Peters said.

Peters believes notice will help business owners address specific issues. He said there are additional ways to help cut the number of lawsuits and improve access, including requiring an ADA-related inspection to obtain or renew a business license or pressing the California Bar Association to discipline attorneys abusing the system.

Such issues could be on the table as a working group of disabled rights advocates, anti-lawsuit groups and attorneys assembled by Steinberg continues negotiations ahead of an early July committee hearing in the Assembly. Talks could stretch into August if the bill stays alive in the lower house.

© Copyright The Sacramento Bee. All rights reserved.

Read more articles by Torey Van Oot



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