A compromise can solve state’s plague of disability lawsuits

The lawsuits sprouted like spring poppies over the past few years, spreading south from Sacramento – first to Stockton, then Manteca and Ripon, finally to Modesto’s doorstep. The targets were small businesses, and the allegation was always the same: Violations of disability access laws.

Merchants cried foul and dubbed them shakedown lawsuits, meant to score a quick buck rather than boost access to folks in wheelchairs. The duel over disability access landed in the state Capitol. But this year, both the tone and the substance of the debate are different, and there’s hope that real progress is at hand.

Consumer Attorneys of California and the California Chamber of Commerce – two organizations nearly always at odds – are working together to solve a problem plaguing many communities: How to make commercial spaces fully accessible for people with disabilities while throttling back lawsuits focused more on reaping fees.

At the Capitol, our organization has been pushing for nearly a decade toward a solution. In 2008, we helped move Senate Bill 1608, designed to increase access to commercial building and address lawsuits seeking fees. In 2012, we backed SB 1186 that made further changes to the law.

This year, we’ve upped the ante, partnering with CalChamber to jointly sponsor SB 251 by Sen. Richard Roth, D-Riverside. This measure, which could be on the Assembly floor this week, would create unprecedented protections for businesses while encouraging them to boost access by:

▪ Preventing small businesses from being sued for 120 days after a certified specialist has inspected the property in preparation to fix access problems.

▪ Mandating that some technical violations that don’t block access may not be subject to statutory damages.

▪ Requiring education so business owners understand how to meet the letter of the law.

▪ Providing a new tax credit for small businesses to help with access construction costs.

The need for these changes is clear. This year marks the 25th anniversary of the Americans with Disabilities Act, but California businesses haven’t done enough to provide full access. What might seem a minor inconvenience to able-bodied individuals – a bathroom grab bar that’s too high or a toilet seat that’s too low – can be a health risk to someone using a wheelchair.

Meanwhile, a small but fervent coterie of attorneys and professional plaintiffs has continued to blanket the state with thousands of lawsuits. Some make monetary demands and then fail to follow through to ensure a fix is completed for the original complaint, often over a simple violation such as a disabled parking sign in the wrong color, instead of significant barriers such as a front door inaccessible to a wheelchair.

SB 251 would help on both fronts. Imagine a woman who uses a wheelchair books a hotel room only to discover the shower is inaccessible. If the hotel hadn’t hired an access specialist and begun moving toward repairs, the woman’s rights under current law would remain untouched. She would have grounds to sue.

But the bill provides a carrot in addition to the legal stick. Its 120-day grace period and tax credit are good motivation for business owners to hire access specialists and correct any problems, thus avoiding lawsuits.

Like so many issues before the Legislature this year, this debate is personal and politically charged. We believe that by working together in good faith we can keep intact California’s strong civil rights protections for people with disabilities, stop or reduce lawsuits that don’t address the real problems and encourage more building owners to make their public accommodations accessible, once and for all.

Brian Chase is an Irvine-based trial lawyer and president of Consumer Attorneys of California. Nancy Peverini is the group’s legislative director.