CA Senate passed a bill Tuesday aimed at protecting small businesses

[mark handler]

Bill protects businesses from disability act suits

By JUDY LIN Associated PressAssociated Press

Posted: 05/29/2012 05:36:20 PM PDT

May 30, 2012 1:6 AM GMTUpdated: 05/29/2012 06:06:53 PM PDT

http://www.mercurynews.com/news/ci_20736451/bill-protects-businesses-from-ada-lawsuits

SACRAMENTO, Calif.—The state Senate passed a bipartisan bill Tuesday aimed at protecting small businesses from attorneys who demand quick settlement money under the Americans with Disabilities Act.

Senate President Pro Tem Darrell Steinberg, D-Sacramento, and Sen. Bob Dutton, R-Rancho Cucamonga, said they were trying to balance the civil rights of disabled people against concerns about a growing predatory legal practice.

They said small businesses are increasingly being threatened with costly lawsuits for failing to improve access for disabled people, and their bill would require lawyers to give small businesses at least 30 days of notice before suing for damages.

It would also ban so-called "demand for money" letters and instead gives hotels, restaurants and other small businesses time to make repairs.

"We know, unfortunately, that there are some plaintiffs' attorneys that threaten small businesses and say to them, 'You either pay up or we are going to sue you,'" Steinberg told lawmakers before the vote.

Lawmakers passed SB1186 on a 36-0 vote just days before the deadline to pass policy bills out of their house of origin. The measure now moves to the Assembly.

Not all lawmakers agreed that legislation was necessary. Sen. Noreen Evans, D-Santa Rosa, said it's hard to believe businesses are still unable to comply with building codes to accommodate the disabled.

"It's just not impossible to comply," Evans said. "There are lawyers who take advantage of the technicalities of existing law, but we have ways in which we can deal with those lawyers short of denying access to our disabled friends and relatives."

Dutton said the problem began to surface in his Southern California district about two years ago, when small businesses began receiving threatening lawsuits from lawyers. Many of the businesses paid to settle without making repairs to better accommodate disabled people, he said.

"Frankly we're trying to get rid of the bad actors—the frivolous lawsuits," Dutton said.

He said small businesses will be better able to make changes if they can avoid costly settlements.

"Now, instead of paying out $3,000 or $4,000 or $5,000 in settlement costs, a lot of the times these kinds of minor infractions are only a few hundred dollars" to repair, Dutton said.

 

[mark handler]

http://www.sgvtribune.com/news/ci_20736771/bill-protects-businesses-from-disability-act-lawsuits

Bill protects businesses from disability act lawsuits From staff and wire reports whittierdailynews.com

Posted: 05/29/2012 07:00:26 PM PDT

The state Senate passed a bipartisan bill Tuesday aimed at protecting small businesses from attorneys who demand quick settlement money under the Americans with Disabilities Act.

Senate President Pro Tem Darrell Steinberg, D-Sacramento, and Sen. Bob Dutton, R-Rancho Cucamonga, said they were trying to balance the civil rights of disabled people against concerns about a growing predatory legal practice.

They said small businesses are increasingly being threatened with costly lawsuits for failing to improve access for disabled people, and their bill would require lawyers to give small businesses at least 30 days of notice before suing for damages.

It would also ban so-called "demand for money" letters and instead gives hotels, restaurants and other small businesses time to make repairs.

"We know, unfortunately, that there are some plaintiffs' attorneys that threaten small businesses and say to them, `You either pay up or we are going to sue you,"' Steinberg told lawmakers before the vote.

Lawmakers passed S.B. 1186 on a 36-0 vote just days before the deadline to pass policy bills out of their house of origin. The measure now moves to the Assembly.

The San Gabriel Valley is no stranger to such lawsuits.

Frank DeMarco and his partner, Tony DeLorenzo, were sued in 2008 for failing to comply with federal disability laws in the parking lot of the Kawa Supermarket building they owned at 8729 Valley Blvd. in Rosemead.

Though they had a handicap parking space in the lot, the space sometimes had grocery carts in it. So they were sued by Jon Carpenter, who has filed more than 100 lawsuits against businesses across the Southland for inadequate disabled access.

In the end, DeMarco and DeLorenzo settled, paying $2,000 in an effort to avoid paying even more in attorney's fees.

DeMarco praised the new legislation Tuesday.

"They have done a superb job with this going through," he said. "Nobody ever warned us to move the carts."

"We were one of many others, who they did the same thing to, in the same place," he added. "About three months ago, a friend of ours who owns a restaurant received the same letter."

Not all lawmakers agreed that legislation was necessary. Sen. Noreen Evans, D-Santa Rosa, said it's hard to believe businesses are still unable to comply with building codes to accommodate the disabled.

"It's just not impossible to comply," Evans said. "There are lawyers who take advantage of the technicalities of existing law, but we have ways in which we can deal with those lawyers short of denying access to our disabled friends and relatives."

Dutton said the problem began to surface in his Southern California district about two years ago, when small businesses began receiving threatening lawsuits from lawyers. Many of the businesses paid to settle without making repairs to better accommodate disabled people, he said.

"Frankly we're trying to get rid of the bad actors - the frivolous lawsuits," Dutton said.

He said small businesses will be better able to make changes if they can avoid costly settlements.

"Now, instead of paying out $3,000 or $4,000 or $5,000 in settlement costs, a lot of the times these kinds of minor infractions are only a few hundred dollars" to repair, Dutton said.

Staff Writer Rebecca Kimitch contributed to this Associated Press story.

 

[Coug Dad]

Some sanity from the left coast. I'm amazed.

 

[Msradell]

And the loss of rights for the disabled begins!

When this legislation is in place no business is going to bother making any accommodations for disabled people until they're sued! Then they will just make the required changes during the grace period provided. 22 years of progress out the window.

 

[GBrackins]

maybe I'm looking at it wrong, but after 20 years of rights being denied what is the issue with 30-days. I don't have to deal with accessibility issues, but from what I've read on here there isn't much enforcement by public agencies, am I correct? Sometimes people do not know all the rules, sometimes people in the know don't know all the rules.

I thought the purpose was to make positive change for more accessible buildings. Am I wrong? I know if I were a business owner and an attorney put me on notice that I had thirty days to address these issues are be sued, I'd be right on it and would spend the money to fix things, not merely pay an attorney. Cause if I didn't then I'm be subject to another law suit.

just because the disabled can collect in court does not mean the work will be done, and the building will remain with it's problems.

Which is more important getting the accessibility issues finally corrected or collecting cash? Maybe I'm missing something here.

 

[mtlogcabin]

All this does is allow a due process. No ones civil rights are denied because a notification is required before a lawsuit can be filed.

The civil rights where denied because access was not available when an indivdual tried to visit a business or use the facilities within the business not because a lawsuit is filed on the immediately or the 30 days later, or one is never filed.

If a disabled person never visits a non- ADA compliant building then how are that individuals civil rights denied?

 

[BSSTG]

Then they will just make the required changes during the grace period provided.

I thought that was the idea.

BS

 

[Msradell]

I thought that was the idea.BS

The idea is that businesses have had over 20 years to comply. There shouldn't be any business in existence today that a disabled person cannot enter and take advantage of the businesses offerings in the same way that they not disabled person can. By not being compliant at the first visit they're denying that person their rights under the ADA. This is especially a consideration when the person is not from the area in may not be able to visit the business again for a long time if ever. They deserve compensation of some type for the denial of their rights. This actually should be the case everywhere instead of just in California. At least until the enactment of this legislation California was a leader in the field of disabled person's rights.

 

[mtlogcabin]

They deserve compensation of some type for the denial of their rights. This actually should be the case everywhere instead of just in California

Why? There are no other civil rights law in the country that will automatically provide compensation when those rights have been denied intentionaly or through a lack of ignorance.

What makes a person with a disability entitled to automatic compensation for a violation of their civil rights and a minority would have to prove in court he was denied service in an establishment before compensation would be awarded.

California is a good example of how a well intentioned law was abused by a select view and a lesson for other states not to go in that direction.

Where business owners have remodeled and had permits and inspections and relied upon the "experts" in the code to approve the installations they have a sense of belief they are in compliance.

Those of in the real world know no building is never 100% built to the minimum codes when the CO is issued and it will never remain 100% code compliant. That is the falicy behind LEED and Green constrcution but that is for a different posting

 

[MtnArch]

I think mtlogcabin has hit on what most of us in California have been faced with (and will continue to face), is that even though we design and detail to a current code/law (and do our utmost to make sure that it's BUILT that way), it does NOT ensure that it will be compliant in the future - nor does it give the (now or future) current tenants/owners/users any "safe harbor" to allow them to take what WAS current and compliant **when built** and convert it TO currently compliant, when the codes/civil rights laws capriciously decide to change what is NOW considered compliant.

AND ... I am NOT saying that if it was originally NOT compliant that they should be let off of the hook - I'm merely reiterating what mtlogcabin said - that "... it will never remain 100% code compliant." We can NEVER build today what will code/civil rights law compliant in 10 years. We can **GUESS** at it - but that's all it is, a simple WAG.

(off my soap box ... for now)

 

[mark handler]

Legislation would curb abusive ADA lawsuits

Andrew S. Ross, Chronicle Columnist

Thursday, May 31, 2012

http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2012/05/30/BUBO1OP49R.DTL

"We need to apply some common sense here."

That was state Senate President Pro Tem Darrell Steinberg after the upper chamber in Sacramento unanimously passed a bill that begins to address predatory lawsuits filed in California under the federal Americans With Disabilities Act.

Co-sponsored by Steinberg, D-Sacramento, and Sen. Bob Dutton, R-Rancho Cucamonga (San Bernardino County), SB1186 would do three things:

-- Ban so-called drive-by plaintiffs and their attorneys from sending "settlement demand" letters with dollar amounts to small businesses under threat of a lawsuit alleging a violation of the ADA.

-- Require that a written notice of a "construction-related accessibility violation" be sent to a small-business owner or building landlord at least 30 days before a suit can be filed.

-- Have commercial landlords inform small-business tenants whether their buildings are state-certified as ADA-compliant.

Now comes the hard part, Steinberg acknowledged, saying the bill is best considered "a work in progress."

'False claims'

"I am concerned that the current version of the bill does not address the hundreds of false claims, which have been made in these cases, or create accountability for those who have been subject to them," said David Peters, a San Diego attorney who heads the advocacy group Lawyers Against Lawsuit Abuse.

"I'm further concerned that it might do little to address the growing problem of claimants seeking multiples of the $4,000 minimum financial damages currently provided" by California law, he said.

One of the most contentious issues probably will revolve around a "right-to-cure" period - a set time to allow a small-business owner to fix a violation before facing a lawsuit. In the original bill, introduced by Dutton, which didn't make it out of committee, the term was set at 120 days.

There is no right-to-cure language in the revised bill, but in a letter to Steinberg this month, Disability Rights California advocacy director Margaret Johnson called the 30-day notice requirement "a substantial infringement on the civil rights of people with disabilities."

The bill "singles out people with disabilities, alone among all groups with civil rights protections, to jump through legal hoops before being able to have their civil rights violations addressed," said Johnson, who also chairs the California Commission on Disability Access.

Referring to the 3o-day provision after the bill was passed on Tuesday, Steinberg countered, "If a problem is a technical violation but doesn't actually impede access, businesses should have the chance to fix it without the threat of a lawsuit."

However this "very sensitive issue," among others, will be taken up when Steinberg and Dutton convene meetings with stakeholders, including small-business owners and disability rights advocates, over the next few weeks.

"We'll want to explore whether there's a difference between a violation of the civil rights law and a violation of the building code that does not impede access," said Steinberg.

Rather than including a right-to-cure provision, which disability rights activists have strongly objected to, Steinberg said he'd rather frame a time dispensation for small-business owners to address a violation as "a duty to fix."

"There needs to be common sense here. We need to stop the undermining of the law by those who are abusing it," he said.

So far, there seems to be little let up in the number of ADA suits being filed. Last month, six businesses along Grant Avenue in San Francisco were hit, according to the San Francisco Examiner.

Deadline looms

The Assembly has yet to take up the measure, and the Legislature, along with the outside stakeholders, have just 90 days to reach a meeting of the minds before the session ends for the year.

But clearly there's movement, prompted in part by the intervention of Sen. Dianne Feinstein, D-Calif., who wrote to Steinberg in March condemning the "shakedown" tactics and "abusive lawsuits" connected with ADA compliance, and threatening to introduce federal legislation if the state doesn't act to curb the practices.

Despite her concerns, Johnson has had conversations with Feinstein's staff and "we remain willing to work with the authors and stakeholders to resolve concerns with this bill."

"It sticks in disabled people's craw that there are plaintiffs and lawyers who are just in it for the money, but nothing gets fixed," she told me last month.

Andrew S. Ross is a San Francisco Chronicle columnist. Blogging: www.sfgate.com/columns/bottomline E-mail: bottomline@sfchronicle.com Twitter: @andrewsross Facebook page: sfg.ly/doACKM

D - 1 of the San Francisco Chronicle

 

[David Henderson]

I don't believe in the extortion being committed by some to make a lucrative income, some just don't want to spend the money on the improvement when they see it as a small fraction of the people who come thru their doors. Who should pay building owner or tenet? Who profits from improvements other than the disabled, and the property owner. Small business owner says the increase in business do to upgrades is not noticeable, not my way of thinking it's theirs. Hell we are all going to need to use some type of accessible feature someday.

 

[mtlogcabin]

The bill "singles out people with disabilities, alone among all groups with civil rights protections, to jump through legal hoops before being able to have their civil rights violations addressed

That is a false statement.

Where in CA law can anyone with an alledged civil rights violation (other than accessibility) can an individuals attorney send out a "settlement demand letter" and recieve compensation for the alledged civil rights violation.

 

[Yikes]

The idea is that businesses have had over 20 years to comply. QUOTE]Here in Southern California, new businesses spring up all the time. We have a large immigrant population that simply does not have 20 years of ADA experience. they are not scofflaws, they are just tryign to adjust to a new business climate. I know that "ignorance of the law is no excuse", but c'mon, why not have a grace period to FIX the problem to the benefit of all, rather than just another shakedown?

 

[Msradell]

The idea is that businesses have had over 20 years to comply. QUOTE]Here in Southern California, new businesses spring up all the time. We have a large immigrant population that simply does not have 20 years of ADA experience. they are not scofflaws, they are just tryign to adjust to a new business climate. I know that "ignorance of the law is no excuse", but c'mon, why not have a grace period to FIX the problem to the benefit of all, rather than just another shakedown?

The problem with allowing the grace period is it completely prevents a visitor from taking advantage of the products or services of the business. A local customer can come back after the corrections are made but an out of town visitor doesn't have that option and is thus denied access to the business. When a business springs up as you put it they have to comply with all other regulations such as permits, taxes, etc. why shouldn't they be required to comply with the ADA requirements in the same way?

 

[rooster]

The problem with allowing the grace period is it completely prevents a visitor from taking advantage of the products or services of the business. A local customer can come back after the corrections are made but an out of town visitor doesn't have that option and is thus denied access to the business. When a business springs up as you put it they have to comply with all other regulations such as permits, taxes, etc. why shouldn't they be required to comply with the ADA requirements in the same way?

I personally think it's high time we made Mt. Everest accessible so everyone can enjoy it.

I am of course being facetious. BUT, making the entire civilized world accessible is not unlike making Mt. Everest accessible. Yes, the business owners have had 20 years to make the improvements...but 20 years is nothing when you're talking hundreds of years of non-compliance (and in other countries thousands of years). Not so easy to fix.

And it's not like we aren't trying. At this time, nothing affects the design and construction of a building like accessibility. 2/3 of entrances now need to be accessible. That's huge. I'm not saying it's bad...just no more front door is accessible and the back door has steps. They both need to be accessible. I need to choose a door that has a 10" bottom rail. Bathroom sizes and fixtures are determined by accessibility. split-level drinking fountains. Clearances around doors. And good-bye door knobs. I'm not saying any of this is a bad thing. I'm just saying that with every building project, new or existing, accessibility is typically on of the top issues if not the #1 issue. So I fail to see where we're leaving the disabled out in the cold.

And the cherry on top is that buildings very recently built will not comply with the new standards. So before we come down with an iron hand and cry out discrimination, let's just settle down and fix the problem.

If anyone is being discriminated against, it's children. If you've ever had your toddler in a public restroom you'll know what I mean.

Barrier Free for anyone 12 and up!!!