mark handler
SAWHORSE
Misuse of ADA kills business
By Russ Neal
Posted: 06/14/2011 01:00:00 AM PDT
http://www.paradisepost.com/opinion/ci_18266656
"The first thing we do, let's kill all the lawyers." (Dick the butcher, from William Shakespeare's Henry the Sixth.)
Many disabled Californians have been enjoying access to public places and private businesses since 1978, when the state Legislature first enacted California's disability access laws. These efforts at providing access have, I'm sure, been much appreciated by those who could not otherwise participate without substantial help from others. In 1992 the federal government enacted the Americans with Disabili-ties Act (ADA), with our lawmakers assuring the public that these laws would apply only to "new construction and major remodeling projects."
They were wrong. California businesses are being sued today over allegedly imperfect parking lot striping, counter height, toilet grab bars, and even the precise placement of signs with the familiar blue wheelchair. Owners of these businesses, despite full compliance with then-current building codes, are finding out that there is little or no defense to a disability access suit under the ADA. California is one of the states that allows for a monetary settlement in addition to correcting the area(s) that are out of compliance. What this does is create a situation where unscrupulous lawyers are using these circumstances as a "license for extortion."
According to Downey Brand Publications, "More than 14,000 ADA/accessibility lawsuits have been filed in California in just the past few years by a small number of
lawyers." As a result, many firms in the state have had to dismiss employees (adding to the unemployment numbers), have sought bankruptcy protection, or simply had to close their doors. Scott Johnson, an attorney and self-proclaimed "crusader for the disabled," has filed more than 1,000 boilerplate lawsuits targeting small businesses in California for failing to comply with the ADA. He has just one client: himself, a quadriplegic.
According to a recent AP story, monetary damages can be awarded if your restaurant's service counter is too high or your apartment complex doesn't have enough disabled parking spots. Mr. Johnson joins other attorneys in making a good thing-providing access to disabled persons-into a bad thing. In fact, one Florida court recently referred to ADA suits as "shotgun litigation."
One California plaintiff was declared a "vexatious litigant" in a court order that characterized his "claims of being the innocent victim of hundreds of physical and emotional injuries over (a four-year period as) defying belief and common sense." In an attempt to bring some common sense to this circus of litigation, Gov. Arnold Schwarzenegger vetoed AB 1707 in 2004, a bill that would have fueled the ADA litigation explosion in California. He called the issue "the next lawsuit abuse problem in California that is likely to drive businesses out of the state."
He also called for legislation to allow unintentional access violations to be corrected without penalty. That is a common sense approach and would be just what the law intended-providing access. It's the addition of monetary damages that has polluted the process. And, unfortunately, proposals in our state Legislature requiring notice and an opportunity to make repairs prior to litigation have been repeatedly defeated. While we must recognize that there are cases that have merit and that there are businesses that refuse to comply, we must be never lose sight of our primary goal in these endeavors. It is not to make lawyers and plaintiffs wealthy at the expense of small businesses and the jobs they create. Our goal is to provide access for those otherwise denied.
The federal ADA statute only provides for the fixing of the access problem and attorney's fees. According to the AP story, attorney Johnson's 1,000 business targets cough up between $2,000 and $6,000 each. Those who can't afford the whole price up front are put on a payment schedule. To demonstrate the ethics (or lack of same) surrounding many of these suits, one plaintiff claimed to have visited 15 different businesses in the same day including six different restaurants.
The claim also asserted that the plaintiff (WHO HAD SUBSEQUENTLY DIED) would like to return to these facilities. God bless William Shakespeare.
***
By Russ Neal
Posted: 06/14/2011 01:00:00 AM PDT
http://www.paradisepost.com/opinion/ci_18266656
"The first thing we do, let's kill all the lawyers." (Dick the butcher, from William Shakespeare's Henry the Sixth.)
Many disabled Californians have been enjoying access to public places and private businesses since 1978, when the state Legislature first enacted California's disability access laws. These efforts at providing access have, I'm sure, been much appreciated by those who could not otherwise participate without substantial help from others. In 1992 the federal government enacted the Americans with Disabili-ties Act (ADA), with our lawmakers assuring the public that these laws would apply only to "new construction and major remodeling projects."
They were wrong. California businesses are being sued today over allegedly imperfect parking lot striping, counter height, toilet grab bars, and even the precise placement of signs with the familiar blue wheelchair. Owners of these businesses, despite full compliance with then-current building codes, are finding out that there is little or no defense to a disability access suit under the ADA. California is one of the states that allows for a monetary settlement in addition to correcting the area(s) that are out of compliance. What this does is create a situation where unscrupulous lawyers are using these circumstances as a "license for extortion."
According to Downey Brand Publications, "More than 14,000 ADA/accessibility lawsuits have been filed in California in just the past few years by a small number of
lawyers." As a result, many firms in the state have had to dismiss employees (adding to the unemployment numbers), have sought bankruptcy protection, or simply had to close their doors. Scott Johnson, an attorney and self-proclaimed "crusader for the disabled," has filed more than 1,000 boilerplate lawsuits targeting small businesses in California for failing to comply with the ADA. He has just one client: himself, a quadriplegic.
According to a recent AP story, monetary damages can be awarded if your restaurant's service counter is too high or your apartment complex doesn't have enough disabled parking spots. Mr. Johnson joins other attorneys in making a good thing-providing access to disabled persons-into a bad thing. In fact, one Florida court recently referred to ADA suits as "shotgun litigation."
One California plaintiff was declared a "vexatious litigant" in a court order that characterized his "claims of being the innocent victim of hundreds of physical and emotional injuries over (a four-year period as) defying belief and common sense." In an attempt to bring some common sense to this circus of litigation, Gov. Arnold Schwarzenegger vetoed AB 1707 in 2004, a bill that would have fueled the ADA litigation explosion in California. He called the issue "the next lawsuit abuse problem in California that is likely to drive businesses out of the state."
He also called for legislation to allow unintentional access violations to be corrected without penalty. That is a common sense approach and would be just what the law intended-providing access. It's the addition of monetary damages that has polluted the process. And, unfortunately, proposals in our state Legislature requiring notice and an opportunity to make repairs prior to litigation have been repeatedly defeated. While we must recognize that there are cases that have merit and that there are businesses that refuse to comply, we must be never lose sight of our primary goal in these endeavors. It is not to make lawyers and plaintiffs wealthy at the expense of small businesses and the jobs they create. Our goal is to provide access for those otherwise denied.
The federal ADA statute only provides for the fixing of the access problem and attorney's fees. According to the AP story, attorney Johnson's 1,000 business targets cough up between $2,000 and $6,000 each. Those who can't afford the whole price up front are put on a payment schedule. To demonstrate the ethics (or lack of same) surrounding many of these suits, one plaintiff claimed to have visited 15 different businesses in the same day including six different restaurants.
The claim also asserted that the plaintiff (WHO HAD SUBSEQUENTLY DIED) would like to return to these facilities. God bless William Shakespeare.
***
