Rules needed to stem serial ADA lawsuits

[mark handler]

Rules needed to stem serial ADA lawsuits

By Cathleen Galgiani State Senator, District 5

http://www.recordnet.com/article/20150512/NEWS/150519903/101127/A_OPINION

Posted May. 12, 2015 at 5:30 PM

The Americans with Disabilities Act was intended to make public and commercial buildings and businesses accessible to persons with disabilities. We all support this objective as do businesses as they benefit from being accessible to all customers. The purpose of the law should be to help and encourage property and business owners to be in compliance for the benefit of disabled persons.

Unfortunately, California’s version and implementation of the federal law has some serious flaws that allow the enforcement of the law to be misused by some persons for personal gain that does not result in correcting situations that do not comply 100 percent with California’s regulations. This has turned into an industry of legalized extortion by some very cynical lawyers and the disabled persons they are using.

These regulations are changed every few years by the State Architect’s office. Notices are not sent out to businesses and even many city and county building inspectors are not familiar with the details. If a sign is not the current requirement or posted at the correct height or markings on the parking area are not the right color, the property or business owner is out of compliance and can be sued by a private party and penalized $4,000 per violation by the court under California’s Unruh Act discrimination law. All of this before getting an opportunity to correct the violation. California’s law and regulations are primarily penalizing rather than guiding.

There are lawyers who work with a person with a disability who will threaten the lawsuit and offer to settle for thousands of dollars. The disabled person drives around the state from community to community looking for minor violations, some that may have been in compliance when they were first done. They then have the lawyer threaten suits and collect thousands of dollars even though they were not harmed. If the owner pays this, they are still not in compliance and are still open to additional lawsuits and the state fines.

Small local businesses are the main focus of these predatory suits as they do not have legal departments to advise them on these complex regulations. Some owners have paid out thousands of dollars for minor violations of the current requirements and that is without yet going to the expense to correct the problems that they didn’t know existed. Several businesses in our area have closed because the costs of the lawsuit and the potential fines exceeded the cost of correcting the problems.

This year I introduced a bill to minimize the opportunity for this important law to be misused that is reasonable for small businesses, at the same time responsible in maintaining the good purpose of the ADA and a legal remedy for intentional failure to comply.

SB67 would exempt a small business from statutory damage liability in connection with a construction-related accessibility claim and would instead limit recovery to injunctive relief and reasonable attorney’s fees as deemed appropriate by the court.

The bill would also extend the period for correcting construction-related violations that are the basis of a claim from 60 days to 120 days of being served with the complaint, for purposes of reducing a defendant’s minimum statutory damage liability to $1,000.

Additionally, it would make conforming changes to a notice a plaintiff is required to serve on a defendant in an action that includes a construction-related accessibility claim.

Similar legislation by several of my Assembly colleagues of both parties have been gutted, quashed or opposed by the Assembly Judiciary Committee this year.

Despite the recognition by organizations representing attorneys throughout the state that there is an ethical problem involved, resistance to reform continues from the legal community. I have decided, based on my assessment that SB67 would not pass out of the Senate Judiciary Committee this month, to make it a two-year bill allowing more time to organize broad support for the measure to move forward next year.

To that end, we need to build an active support structure here in the Central Valley and throughout the state. I would appreciate getting letters or emails of support from individuals, businesses and organizations that are concerned about this abuse of law.

— Contact State Sen. Cathleen Galgiani by mail at 1010 10th Street, Suite 5800, Modesto, CA 95354 or visit her web site: Senator.galgiani@senate.ca.gov

 

[ICE]

This has been a topic of conversation for years. It will always be a topic of conversation. Lawyers have so much influence with lawmakers that nothing will change.

 

[jdfruit]

I would like to know what really goes on at the legislation committees and in the halls in Sacto. Well you know what they say about eating sausages after you've seen them being made...

 

[conarb]

I would like to know what really goes on at the legislation committees and in the halls in Sacto. Well you know what they say about eating sausages after you've seen them being made...

JD:

I think it was about 10 years ago the Mercury News did a whole series on it, lobbyists write the legislation for the legislators, they sit in the chambers at the desks of the legislators and are there when the legislators get up to present their proposed legislation and answer questions. While this is going on other members of the lobbyists staff are fanning out to other legislators offices seeking support which is usually in the form of negotiating campaign donations. I read the series with great interest and kept looking to see if there was any mention of other states but never saw any, so this may or may not be unique to Sacramento.

The disability activist organizations and their attorneys are very "active" in promoting their agenda, and this includes paybacks and payoffs to other organizations for their support. We think the code writing and approval process is corrupt, it is nothing compared to what goes on in Sacramento and Washington.

Mention is often made here about the Unruh Act, Jesse "Big Daddy" Unruh was probably the most corrupt Democratic Machine politician California has ever seen, if anyone he is the most responsible for the out-of-control public employee pension crisis:

During 1959, he authored California's Unruh Civil Rights Act, which outlawed discrimination by businesses that offer services to the public and was a model for later reforms enacted nationally during the 1960s and 1970s. Unruh was Speaker of the California State Assembly from 1961 to 1969 and a delegate to Democratic National Convention from California in 1960 and 1968. As a national figure in the Democratic Party, he often feuded with fellow Democrat Governor Pat Brown (1959–67) and was a case-study in the James Q. Wilson treatise on machine politics, The Amateur Democrat.

When he ran for State Treasurer in 1974, the post was considered a "political backwater." Unruh's radio advertisements assured voters, "Make no mistake about it, I really want this job." Once elected, Unruh transformed the office into a powerhouse of state and national politics. The Wall Street Journal noted he became "the most politically powerful public finance officer outside the U.S. Treasury." California pension funds were a major source of revenue for Wall Street underwriting firms, and Unruh secured campaign contributions in exchange for steering business their way. The New York Times said he had taken over "an obscure post whose duties had long emphasized bookkeeping. In characteristic fashion, he soon transformed the job into a source of financial and political power that reached from California to Wall Street." Because as Treasurer he was ex officio member of many California boards and commissions, Unruh oversaw "the raising and expenditure of virtually all the state's money and consolidated his influence over billions of dollars in public investments and pension funds."According to an apocryphal tale, Unruh was nicknamed "Big Daddy" by Raquel Welch, when the two were allegedly romantically involved. Welch denies the claim. It is more likely that the nickname comes from a character in the Tennessee Williams play, Cat on a Hot Tin Roof.

Quotes

On campaign contributions – "Money is the mother's milk of politics." 1966

On lobbyists – "If you can't eat their food, drink their booze, screw their women, take their money and then vote against them you've got no business being up here." ¹

¹ https://en.wikipedia.org/wiki/Jesse_M._Unruh

 

[jdfruit]

Unruh definitely was a master power broker, and so was his protege Willie Brown who outdid Unruh for time as speaker and monetary influence over the state & regional economy. Brown's power brokering made him even more influential in the last 30 years then Unruh was during his heyday. When it gets down to who did the deeds; Unruh did the heavy lifting for Gov Pat Brown to get the civil rights legislation in place even though he had philosophical differences with civil rights (Unruh was a transplanted Texan as was Willie Brown).

The so called "out of control" public employee pension "crisis" is a mess of unfulfilled contract obligations between the State & local gov Cities/Counties. Simply put; the State, Counties, & Cities have put off paying the contractually obligated amount to the pension funds so they could "play power or redistribute" the money to other uses. This went on long enough they can't afford to catch up and now have to "pay as you go". With the largest percentage of retirees being "baby boomers" the system is looking at larger "pay as you go". The old "pay me now or pay me later" has not been handled well at all across all government throughout the State (there are a few exceptions).

 

[Msradell]

The entire problem with the ADA is that it provides no means of enforcement! At least California has made an attempt at having a means of enforcement even though it's considerably abused in many cases. I really don't know of any state that has an adequate means of enforcement for accessibility standards at this time. Yes, obviously the various building codes at sections that require new buildings to be accessible and remodeled buildings to a lesser extent but as far as I know no state has any laws in place that require a business to be accessible.

 

[MASSDRIVER]

The entire problem with the ADA is that it provides no means of enforcement!

No. The problem is that it is bad law.

Brent.

 

[mtlogcabin]

no state has any laws in place that require a business to be accessible.

And there never should be

If they did where would it end?

"Barrier Removals" sounds good and reasonable in existing buildings for ramps, threshold requirements at doors, door handles, handrails etc. However it gets expanded into restroom remodels, modifying floor elevations in dining establishments, changing drinking fountains and anything else the ADA mentions.

A Federal civil rights law should be enforced buy the Federal Government not the state or local governments.

ADA has resulted in a lot of improvements in existing buildings and heightend the awarness of the need in new construction which has resulted in 100,000's of new commercial buildings across the country providing for the disabled in their design and construction. Are they all perfect and compliant? No, but there are a 1,000 percent improvement over what was constructed in the past.

 

[mark handler]

A Federal civil rights law should be enforced buy the Federal Government not the state or local government

And it is not, in California, we have accessibility laws that predate the ADA

Everyone thinks all accessibility laws are the federal ADA. Yes they are closely alined and related. But the access laws in CA are not the ADA.

The federal accessibility laws added more credibility to the state enforcement

 

[mtlogcabin]

But the access laws in CA are not the ADA.

Thank God for that.

There is science, logic, reason; there is thought verified by experience. And then there is California.

Edward Abbey

 

[conarb]

Thank God for that.There is science, logic, reason; there is thought verified by experience. And then there is California.

Edward Abbey

The reason California is so screwed up is that it is run be powerful interests that own the Democratic Party, when Schwarzenegger was elected we thought he would turn things around, but he soon succumbed to the monied interests, in our business our entire Building Standards Commission had been bought off by the fire sprinkler coalition and they voted to replace the ICBO codes the the NFPA 5000, when Republican Schwarzenegger was elected he replaced all of them and they rescinded the prior commissions decision before it took effect and we went back to a combination of ICC and U codes.

ADA is Civil Rights law, nothing in this country has been as destructive as Johnson's Civil Rights laws, as I've posted before it was Johnson's way of buying votes for the Democratic party for the next 200 years, then other activist groups, like the handicapped, the feminists, the gays, and others jumped on the bandwagon declaring their inferiority and their need for special laws to protect them, all of a sudden Negroes became black, the handicapped became disabled, ladies became women, queers became gays, Thomas Sowell (a black economist) often writes of how minimum wage laws and the Civil Rights act have destroyed the black community, it's doing the same now that some handicapped have become enlisted by activists demanding special protections. In California this was work of Big Daddy Unruh, he was buying votes for the Democratic Party by bringing special treatment for all these groups to California.

The saddest part of this is that the Social Justice laws have become a religion, a religion that we are trying to impose on the whole world, we have military bases in 100 countries and special operations forces in 133 countries all trying to conquer the world and impose our social justice agenda. The U.S. is now bankrupt, Russia and China are getting together to defeat the American Empire and their Social Justice Religion, Here is a recent article from Pravda, we have no more First Amendment Freedom of Association, we have to associate with minorities, women, and the disabled whether we want to or not, this is no-longer a free country, we have gestapo-like forces to enslave us, cops, IRS agents, building inspectors to tell us how much energy we can consume, how much water we can drink, how much sugar we can eat, can Vladimir Putin stop the fascist American Empire from imposing their social justice religion on the world?

 

[mtlogcabin]

Thomas Sowell, Walter E williams and Larry Elders are some of my favorite columnist

Mike Adams is another who I like He writes about the crazy things at college/university campuses.