Northern California Record

Wednesday, October 16, 2019

California is ground zero for ADA lawsuit abuse

By Seth Sandronsky | Aug 9, 2016

SACRAMENTO - State Rep. Ken Calvert, (R-CA) spoke out against abusive litigation brought on alleged violations of the Americans with Disabilities Act (ADA) earlier in the state's legislative session saying that businesses ought to be given a reasonable period of time to fix access problems.

“There’s an increasing number of lawsuits brought under the ADA that are based on a desire to achieve financial settlements rather than achieve the appropriate modifications for access,” he said.

Calvert's remarks came during his testimony at the Subcommittee on Constitution and Civil Justice of the House Judiciary Committee involving a proposal dubbed "ACCESS" (Compliance for Customer Entry to Stores and Services) Act of 2015, or H.R. 241, which he introduced more than a year and a half ago.

H.R. 241 would amend the ADA requiring claimants to provide written notice of an alleged barrier and give a business an appropriate amount of time to fix any problems before they can file suit.

In his testimony, Calvert recalled from personal experience the burden that business owners face with the threat of ADA litigation.

“As a former small business and restaurant owner I have personally had to deal with these,” he testified. “I can say for certain that frivolous lawsuits do not accomplish any goal.

“Allowing small business owners to fix ADA violations in 120 days rather than waiting for lengthy legal battles to play out is a more thoughtful and timely and reasonable approach.”

H.R. 241’s proposed ADA reform in part resembles California Senate Bill 269 introduced by Sen. Richard Roth (D–Riverside) that Gov. Br Jerry Brown signed into law on May 10. SB 269 will amend the Civil Code, and the Government Code, changing how construction-related accessibility claims proceed under the ADA, and California’s Unruh Civil Rights Act of 1959. The bill allows businesses with payrolls of 50 workers or less to hire a Certified Access Specialist, and with a prior ADA access compliance inspection, receive a full 120 days to fix ADA violations without plaintiffs filing civil penalties.

Tanya Moore is a disability rights lawyer based in San Jose. She disagrees with Calvert’s critique of ADA litigation as off the mark.

“There is no crisis of “frivolous ADA lawsuits against small businesses,” Moore told the Northern California Record. “In fact, all complaints are now sent to the California Commission for Disability Access (CCDA) where they chronicle the tremendous access gained through litigation. The lawsuits which have been filed have resulted in California being one of the most accessible states in the country.”

Calvert disagrees.

“California has become ground zero for ADA lawsuits,” he said, “home to more federal disability lawsuits than the next four states combined.”

Kim Stone, president of the Civil Justice Association of California, agrees with Calvert’s critique of disability access litigation. She also disputes Moore’s interpretation of government compliance figures, citing data from the CCDA’s report to the state Legislature about 2015 ADA cases:

“What I see is a very small number of lawyers (70 percent of cases filed in California in 2015 were filed by just six firms,” Stone said. “Forty percent of the cases in 2015 were filed by just two firms who are exploiting ADA lawsuits for their own personal gain. Many of these lawsuits are frivolous and many of the settlements are only about money and not about requiring the business to become compliant.”

Meanwhile, Moore wants legislators to focus on businesses increasing their voluntary compliance with ADA law. She said it's the best governmental policy approach to reducing ADA litigation.

Stone countered that if businesses were allowed to fix problems before suit can be filed, two positive things would happen.

“One, the number of extortionate ADA lawsuits would go down," Stone said. "Two, businesses would become more accessible. This would be a tremendous improvement over the situation we’ve got now where many businesses still are not compliant and these lawsuits, in many cases, don’t even help improve access.

“Until and unless we change the law, we recommend that business owners find and hire a Certified Access Specialist and get their business evaluated. Then we recommend they make any improvements necessary to become compliant with the ADA.

“This will increase access for the disabled and is the only way for a business to protect itself against a lawsuit."

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Civil Justice Association of California