mark handler
SAWHORSE
By George Coles
midnight, June 16, 2011
http://www.signonsandiego.com/news/2011/jun/16/time-to-reform-out-of-control-ada-lawsuits/
When it was passed in 1990, the American With Disabilities Act was intended to increase access for disabled Americans across the nation. Unfortunately, a relatively small number of opportunists have filed tens of thousands of lawsuits under the ADA which have done little more than put cash in their pockets. Too often, despite years of litigation and tens of thousands of dollars, no changes are ever made at many properties and the real losers are the people with disabilities still waiting to get into businesses more than 20 years after the ADA passed.
Because the ADA currently does not require any sort of notice before a lawsuit can be filed, many question whether a system of surprise “gotcha” lawsuits by private individuals is really the best way to change building standards. Since many claimants only want a quick financial settlement, many changes are never made because the business reaches a financial settlement and a nearly unenforceable agreement is protected by a tight confidentiality clause.
Many ADA lawsuits have been filed for issues of relatively minor noncompliance – such a sign being the wrong color or having the wrong words. At least 42 percent of the ADA lawsuits filed in the United States are filed in California. Many small businesses have closed or gone bankrupt as a direct result.
Rep. Duncan Hunter, R-Alpine, has introduced reform legislation which would change all that. HR 881, the ADA Notification Act of 2011, would require that before a lawsuit could be filed under the ADA, the claimant would have to send the business a letter identifying the problem and providing a brief opportunity to fix it. Most businesses will promptly fix the problem because they can use the same money they would spend on litigation to make improvements. If they ignore the complaint, they realize they almost certainly will end up in court.
California legislators have repeatedly rejected reforms such as HR 881. With widespread bipartisan recognition of the abuse of these claims, the state Legislature three years ago created the California Commission on Disability Access, but there has been no significant improvement with regard to the abuse of these claims, and no improvements are in sight. Despite the best intentions of the commission, California’s accessibility standards continue to conflict with the ADA, exceeding 500 pages of minutely detailed standards which change constantly. Most small businesses would be unable to determine with certainty the exact changes they need to make and would have to hire a costly expert; unfortunately, because the law is so subjective, the experts often disagree. Even many brand-new buildings have been sued on these claims.
Sacramento has been quick to create crises but slow to fix them. California’s legal climate is consistently ranked one of the worst in the nation, and CEO Magazine recently rated California as the worst state for business.
Experts estimate that close to 100 percent of ADA lawsuits could have been prevented if a reform like HR 881 had been passed years ago. Most business sued are willing to make changes but weren’t even aware that something like an unsecured floor mat or pedestal table could cause problems for someone with disabilities; most would gladly eliminate conditions like this rather than deal with a lawsuit. Because vast numbers of these lawsuits are filed without paying filing fees, taxpayers should want already limited court resources to be used only for those truly unwilling to make changes.
One local example that HR 881 could have prevented was a small, family-owned business which closed after making all appropriate changes. The attorneys, experts and plaintiff were all paid handsomely, but the owners were shocked to learn that even once the structure passed all inspections, it would still not prevent another lawsuit from being filed. The standards were so uncertain that a new claim could be brought at any time. Because they never wanted to risk being sued again, they closed the business, so no one got access and many lost jobs. This same result has occurred throughout the United States.
Nationally, small businesses represent 99.7 percent of all employers and hire more than half of U.S. workers. As our economy struggles to recover, we need to give individuals the incentive to create jobs, and limit the potential for catastrophic claims that close businesses. Rep. Hunter understands that in California, we need more jobs, not more lawsuits.
Coles is president of Coles Fine Flooring and a supporter of California Citizens Against Lawsuit Abuse.
midnight, June 16, 2011
http://www.signonsandiego.com/news/2011/jun/16/time-to-reform-out-of-control-ada-lawsuits/
When it was passed in 1990, the American With Disabilities Act was intended to increase access for disabled Americans across the nation. Unfortunately, a relatively small number of opportunists have filed tens of thousands of lawsuits under the ADA which have done little more than put cash in their pockets. Too often, despite years of litigation and tens of thousands of dollars, no changes are ever made at many properties and the real losers are the people with disabilities still waiting to get into businesses more than 20 years after the ADA passed.
Because the ADA currently does not require any sort of notice before a lawsuit can be filed, many question whether a system of surprise “gotcha” lawsuits by private individuals is really the best way to change building standards. Since many claimants only want a quick financial settlement, many changes are never made because the business reaches a financial settlement and a nearly unenforceable agreement is protected by a tight confidentiality clause.
Many ADA lawsuits have been filed for issues of relatively minor noncompliance – such a sign being the wrong color or having the wrong words. At least 42 percent of the ADA lawsuits filed in the United States are filed in California. Many small businesses have closed or gone bankrupt as a direct result.
Rep. Duncan Hunter, R-Alpine, has introduced reform legislation which would change all that. HR 881, the ADA Notification Act of 2011, would require that before a lawsuit could be filed under the ADA, the claimant would have to send the business a letter identifying the problem and providing a brief opportunity to fix it. Most businesses will promptly fix the problem because they can use the same money they would spend on litigation to make improvements. If they ignore the complaint, they realize they almost certainly will end up in court.
California legislators have repeatedly rejected reforms such as HR 881. With widespread bipartisan recognition of the abuse of these claims, the state Legislature three years ago created the California Commission on Disability Access, but there has been no significant improvement with regard to the abuse of these claims, and no improvements are in sight. Despite the best intentions of the commission, California’s accessibility standards continue to conflict with the ADA, exceeding 500 pages of minutely detailed standards which change constantly. Most small businesses would be unable to determine with certainty the exact changes they need to make and would have to hire a costly expert; unfortunately, because the law is so subjective, the experts often disagree. Even many brand-new buildings have been sued on these claims.
Sacramento has been quick to create crises but slow to fix them. California’s legal climate is consistently ranked one of the worst in the nation, and CEO Magazine recently rated California as the worst state for business.
Experts estimate that close to 100 percent of ADA lawsuits could have been prevented if a reform like HR 881 had been passed years ago. Most business sued are willing to make changes but weren’t even aware that something like an unsecured floor mat or pedestal table could cause problems for someone with disabilities; most would gladly eliminate conditions like this rather than deal with a lawsuit. Because vast numbers of these lawsuits are filed without paying filing fees, taxpayers should want already limited court resources to be used only for those truly unwilling to make changes.
One local example that HR 881 could have prevented was a small, family-owned business which closed after making all appropriate changes. The attorneys, experts and plaintiff were all paid handsomely, but the owners were shocked to learn that even once the structure passed all inspections, it would still not prevent another lawsuit from being filed. The standards were so uncertain that a new claim could be brought at any time. Because they never wanted to risk being sued again, they closed the business, so no one got access and many lost jobs. This same result has occurred throughout the United States.
Nationally, small businesses represent 99.7 percent of all employers and hire more than half of U.S. workers. As our economy struggles to recover, we need to give individuals the incentive to create jobs, and limit the potential for catastrophic claims that close businesses. Rep. Hunter understands that in California, we need more jobs, not more lawsuits.
Coles is president of Coles Fine Flooring and a supporter of California Citizens Against Lawsuit Abuse.
