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Valley businesses learn to comply with ADA after wave of lawsuits
http://cvbj.biz/2014/09/30/valley-businesses-learn-comply-ada-wave-lawsuits/
September 30, 2014
MODESTO — When Brad Bilson received a letter two years ago telling him the parking lot at his Turlock sporting goods store was out of compliance with Americans with Disabilities Act (ADA) regulations, he talked to three lawyers to see if it was true.
“I consulted three attorneys at the time and they all said it’s bogus. It’s just an attorney looking for money. You’re owner-occupied,” Bilson said. “All three attorneys I spoke to all thought I was grandfathered in. So I responded to the complaint, sent the lady a letter and said, ‘I’m in compliance.’”
Six months ago Bilson received a subpoena and he has spent the time since considering whether to fight or settle and how to pay for what he estimates will be at least $20,000 in awards, attorneys’ fees and the cost of making changes to his parking lot.
The woman suing Bilson is Atwater resident Aurora Cervantes. She has filed 20 other similar claims against businesses in Stanislaus and Merced counties.
Kim Stone of the Civil Justice Association of California (CJAC) said Bilson’s case and his belief about his business’s ADA compliance standing are all too common.
“People look for a reason that they think it doesn’t apply to them: ‘I’m a tenant. My parking lot is small. It’s too expensive. It’s old so I’m grandfathered in. My cousin is in a wheelchair and comes in here every Saturday morning for breakfast and can get around,’” Stone said. “And so they think, mistakenly, that they’re OK. But none of those are legal defenses.”
Small businesses in the Central Valley are increasingly finding themselves the targets of ADA claims by a handful of people who file lawsuit after lawsuit claiming discrimination. In fact, nearly 40 percent of the ADA lawsuits filed in the United States are in California. Tort reform advocates say that is largely because our state’s Unruh Civil Rights Act paves the way for bigger awards and California doesn’t require plaintiffs to demonstrate injury.
The Unruh Civil Rights Act, which was passed in 1959, provides for $4,000 per violation plus the possibility of getting attorneys’ fees. The claim against Bilson cited three violations: for the paint, the spot and the signage.
CJAC is working to reform laws to make it more difficult to extract such large amounts from defendants. Stone says a big part of the problem is that the Unruh Act treats all violations, no matter how technical, as discrimination against the disabled.
“From our point of view, there’s a difference between an actual access barrier — I can’t get into your store because there’s no ramp — and I’ve got a van-accessible parking spot that I can get in and out of with my van but it doesn’t happen to say ‘$250 fine.’ That is not an access barrier, but that is an ADA violation. But the law doesn’t distinguish between the two,” Stone said.
Other efforts are underway at the state and federal level to change the way ADA laws are enforced to reduce the chance that businesses will be hit with such devastating lawsuits. One bill in Congress, HR 777, would create a 90-day grace period for businesses to fix violations before a lawsuit could move forward.
In the meantime, business advocates are trying to educate small businesses about the lawsuits and how to become ADA compliant. The Stanislaus Business Alliance hosted a workshop Sept. 25 which was attended by about 75 business owners in downtown Modesto. CJAC’s Stone was the featured speaker and tried to drive home the importance of getting out in front of the problem. Her No. 1 piece of advice: hire a certified access specialist through your lawyer.
“This is not a thing you should figure out on your own,” Stone said, noting that there are separate federal regulations and state regulations, and the books for each are an inch-and-a-half thick. “Close or slightly off is going to be a lawsuit.”
According to the California Commission on Disability Access, the top 10 compliance claims that show up in demand letters are: van access zones that are not compliant or don’t exist at all; non-compliant parking signage; existing parking spaces that are not compliant; too few compliant disabled parking spaces; routes to and from parking lot or public right of way that are not accessible; counters, bars or tables that are not the correct height; curb ramps or entrance ramps that are not compliant or non-existent; entry doors that are not accessible or missing signs/symbols of accessibility; access aisles within building that are not accessible; and restroom doors that are not accessible or not on an accessible route.
Stone has the following advice for business owners who can’t afford to fix problems all at once: “Hire a certified access specialist, through your lawyer and then make the quickest, most obvious, cheapest changes first and then create a plan to become fully compliant.”
Bilson said if he’d known about CJAC two years ago, he probably would have followed its advice, hired a certified access specialist and made the changes.
“I understand the compliance thing, but literally, where is that $20 grand going to come from?” he said. “It doesn’t come from stockholders. I can’t just raise my prices. It just has to come out of my pocket, which is my family.”
http://cvbj.biz/2014/09/30/valley-businesses-learn-comply-ada-wave-lawsuits/
September 30, 2014
MODESTO — When Brad Bilson received a letter two years ago telling him the parking lot at his Turlock sporting goods store was out of compliance with Americans with Disabilities Act (ADA) regulations, he talked to three lawyers to see if it was true.
“I consulted three attorneys at the time and they all said it’s bogus. It’s just an attorney looking for money. You’re owner-occupied,” Bilson said. “All three attorneys I spoke to all thought I was grandfathered in. So I responded to the complaint, sent the lady a letter and said, ‘I’m in compliance.’”
Six months ago Bilson received a subpoena and he has spent the time since considering whether to fight or settle and how to pay for what he estimates will be at least $20,000 in awards, attorneys’ fees and the cost of making changes to his parking lot.
The woman suing Bilson is Atwater resident Aurora Cervantes. She has filed 20 other similar claims against businesses in Stanislaus and Merced counties.
Kim Stone of the Civil Justice Association of California (CJAC) said Bilson’s case and his belief about his business’s ADA compliance standing are all too common.
“People look for a reason that they think it doesn’t apply to them: ‘I’m a tenant. My parking lot is small. It’s too expensive. It’s old so I’m grandfathered in. My cousin is in a wheelchair and comes in here every Saturday morning for breakfast and can get around,’” Stone said. “And so they think, mistakenly, that they’re OK. But none of those are legal defenses.”
Small businesses in the Central Valley are increasingly finding themselves the targets of ADA claims by a handful of people who file lawsuit after lawsuit claiming discrimination. In fact, nearly 40 percent of the ADA lawsuits filed in the United States are in California. Tort reform advocates say that is largely because our state’s Unruh Civil Rights Act paves the way for bigger awards and California doesn’t require plaintiffs to demonstrate injury.
The Unruh Civil Rights Act, which was passed in 1959, provides for $4,000 per violation plus the possibility of getting attorneys’ fees. The claim against Bilson cited three violations: for the paint, the spot and the signage.
CJAC is working to reform laws to make it more difficult to extract such large amounts from defendants. Stone says a big part of the problem is that the Unruh Act treats all violations, no matter how technical, as discrimination against the disabled.
“From our point of view, there’s a difference between an actual access barrier — I can’t get into your store because there’s no ramp — and I’ve got a van-accessible parking spot that I can get in and out of with my van but it doesn’t happen to say ‘$250 fine.’ That is not an access barrier, but that is an ADA violation. But the law doesn’t distinguish between the two,” Stone said.
Other efforts are underway at the state and federal level to change the way ADA laws are enforced to reduce the chance that businesses will be hit with such devastating lawsuits. One bill in Congress, HR 777, would create a 90-day grace period for businesses to fix violations before a lawsuit could move forward.
In the meantime, business advocates are trying to educate small businesses about the lawsuits and how to become ADA compliant. The Stanislaus Business Alliance hosted a workshop Sept. 25 which was attended by about 75 business owners in downtown Modesto. CJAC’s Stone was the featured speaker and tried to drive home the importance of getting out in front of the problem. Her No. 1 piece of advice: hire a certified access specialist through your lawyer.
“This is not a thing you should figure out on your own,” Stone said, noting that there are separate federal regulations and state regulations, and the books for each are an inch-and-a-half thick. “Close or slightly off is going to be a lawsuit.”
According to the California Commission on Disability Access, the top 10 compliance claims that show up in demand letters are: van access zones that are not compliant or don’t exist at all; non-compliant parking signage; existing parking spaces that are not compliant; too few compliant disabled parking spaces; routes to and from parking lot or public right of way that are not accessible; counters, bars or tables that are not the correct height; curb ramps or entrance ramps that are not compliant or non-existent; entry doors that are not accessible or missing signs/symbols of accessibility; access aisles within building that are not accessible; and restroom doors that are not accessible or not on an accessible route.
Stone has the following advice for business owners who can’t afford to fix problems all at once: “Hire a certified access specialist, through your lawyer and then make the quickest, most obvious, cheapest changes first and then create a plan to become fully compliant.”
Bilson said if he’d known about CJAC two years ago, he probably would have followed its advice, hired a certified access specialist and made the changes.
“I understand the compliance thing, but literally, where is that $20 grand going to come from?” he said. “It doesn’t come from stockholders. I can’t just raise my prices. It just has to come out of my pocket, which is my family.”
