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CA Activists to Battle Business Community Over Access

EDITOR'S UPDATE: the initiative was withdrawn in Feb. 2006. See http://www.raggededgemagazine.com/departments/news/000808.html.

California access advocates are preparing for battle once again. This time they'll be fighting "that vagary of California self-governance called the 'initiative,'" as Californians for Disability Rights president Laura Williams puts it.

The initiative, being readied to put before voters, is now deceptively named "The Opportunity to Repair Act of 2006." In fact, say advocates, it's the latest plan backed by California's business community to remove the teeth from California access laws.

California is one of few states that currently allows people who have been harmed by the denial of access to file suits for monetary damages for discrimination. The state's business community has tried for years to get rid of this damages provision. But bills before the state legislature have so far failed. The new initiative -- which activists call an end-run around legislators -- is the latest attempt to remove the damages provisions from California's access law.

The current initiative, if passed, would also remove the ability of attorneys to receive payment for their legal fees in access suits.

An "initiative," according to the website of the California secretary of state, "allows a citizen the option to bypass the Legislature and go straight to the public in an effort to place an issue of interest on the ballot for voter approval or rejection." Once paperwork from the attorney general's office is in order, the initiative's backers "circulate" the initiative publicly for 150 days -- generally with lots of media attention -- while they work to get the requisite number of signatures ("just under 400,000 valid signatures," says Williams) from voters to enable it to be placed on the ballot.

An initiative is much worse than a bill in the state assembly, "where seasoned legislators can keep hysteria out of the picture," says Williams. "Much worse."

The history of California politics is full of such initiatives -- some of the more well-known are Proposition 13, which limited property taxes and started a nationwide trend, and Proposition 209, which ended affirmative action programs in California's higher-education institutions.

Whether the proposition will continue to be called the "The Opportunity to Repair Act of 2006" is anyone's guess. Getting it re-named so that it's not "deceptive" seems to be the immediate strategy of California's disability community. Activists are urging attorney general Bill Lockyer to re-name it so that its purpose as an anti-access measure becomes clear.

Julian, CA's business community is currently fighting access suits. Read more.

"The attorney general should entitle this "A Bill to Eliminate Civil Rights Protections for Persons With Disabilities," says attorney Paul Rein in an email to advocates (Rein is the attorney who sued Clint Eastwood for access violations at his Mission Ranch resort). Sources say the initiative is not only deceptive but possibly illegal -- for it combines two unrelated issues -- "residential construction defects" and "commercial building accessibility violations". An initiative, say activists, is by law supposed to be confined to a single issue.

The person whose name is on the submittal papers is Robert Rivinius, but some sources believe California legislator Tim Leslie is behind it. (Editor's note of 2/2/06: Laura Williams, in her comment below, assures us that Assemblyman Leslie is not behind this initiative but is "carrying AB1847 -- Small Business Tax Credit for barrier removal.") The Sacramento law firm of Nielsen, Merksamer, Parrinello, Mueller & Naylor is listed on the Initiative's filing papers.

Some wording from the initiative gives a flavor of the measure:

Unnecessary litigation to correct ... commercial building accessibility violations has cost ... small businesses significant money. In many cases, the only winners are the trial lawyers who make off with millions of dollars in fees and settlements. (b) The problem is that trial lawyers do not encourage resolution of these disputes by first offering the ... small business owners in the case of accessibility violations, an opportunity to repair the problem without litigation. Often times in accessibility violation situations, the lawyers don't even have a client who has been harmed, yet they force businesses into settlements where the lawyers get most of the money. (c) The result is that the trial lawyers prosper ...by filing frivolous and unnecessary lawsuits over minor problems that could be corrected without resorting to litigation... (Read the proposed The Opportunity to Repair Act of 2006)

The measure outlines a "long and complicated process" for any disabled person who wants to correct an access violation -- the effect of which, says Rein's memo, is to force a disabled person to forego use of an attorney, since the measure would outlaw payment of attorney fees or damages.

"The disabled person would have to determine the corrections, negotiate with the owner, attend and argue their case in a hearing, and pay for this without any hope of recovery of attorney fees, damages or costs," writes Rein in a memo. "This is really the point of this initiative: to eliminate any lawyers representing disabled persons in civil rights lawsuits."

Defendants would avoid "all liability for fees or damages" so long as they fixed the problem. With no way of getting payment for services, "attorneys could no longer afford to handle civil rights cases for disabled persons in California court."

For some history: See Business strikes back: California firms press state bills to stop access lawsuits

If the initiative passed, businesses would not be required to fix any access problems other than ones a disabled person had actually noticed -- and there would be no time limit on how long they took to correct those problems, according to activists.

Williams says that if the initiative is allowed to go forward, she anticipates an increased frenzy of "mass media bullshit" to "persuade the voting public that 'something should be done about those bad lawyers raping the ADA.'"

California's business community "has declared open war on disability civil rights in California," says Williams, and "this is the front line."

Biased media coverage and "misleading ads" can influence voters on an initiative, Williams says. "This initiative does not really even mention disability rights," she adds, saying that the initiative's framers refer to access problems as mere "construction defects," and have obfuscated the issue further by grouping them with new home defects. 

Activists also believe the initiative violates civil rights under equal protection clauses in federal and state law, says Williams. "We will be pressuring the attorney general to reject this initiative as illegal."


This initiative's a big threat to disabled people, and can and will be defeated, but the problem isn't the initiative process itself. Initiatives for education, environmental preservation, transportation, and insurance reform have benefited disabled Californians (provided they weren't insurance company executives or owners of companies building prisons).

We can and will counter the image of sue-happy disabled people, and put the spotlight where it belongs: on the scofflaw opponents of civil rights protection. Those who would weaken protection of disability rights will pay signature-gatherers in their effort to promote this ill-advised initiative.

The apparent assumption that "the masses are asses" was proven wrong in the last California election when ALL of Governor Schwarzenegger's ballot initiatives were defeated. The disability community may have an opportunity to educate the public about a measure to elevate special interests over civil rights.

We should have an initiative process at the national level, too. We'd have an ADA Restoration Act by now, rather than the current situation where the three branches are competing to chip away at disability rights.

Just confirmed with Assy Leslie's Office: Tim Leslie is not behind the Initiative.

He is carrying AB1847 Small Business Tax Credit for barrier removal.

We represent a woman who tripped over a large defect across the entire width of a designated disabled access walkway at a professional sports arena caused by a tree root. Arena knew of one other incident over 6 months before our lady was severely injured. An independent witness says he has been telling arena of another defect for one year, a defect that makes it impossible for his son to get his wheelchair up the ramp from handicap parking to the arena level. If you think this is bad, wait and see what happens if the initiative passes.

The Initiative has been withdrawn. See story at http://www.raggededgemagazine.com/departments/news/000808.html.

I am mother of son with a developmental disability, asperger syndrome (high functioning form of autism). I took my son as I always do , to vote with me around 10AM today. Thankfully my voting place is accessible to people with disabilities , though I am not sure there was an accessible voting booth for anyone that uses a chair. When my 13 year old son and I arrived, there was two other people that were reading over information on a table but no line for my district or the other. In fact, the volunteers that worked at my voting place outnumbered the actual number of voters at this time in Clarence, New York.

What I found unusual and quite disturbing was a huge sign stating that people have only three minutes in the voting booths and that they need to read information before. Most people know who they will be voting for when they vote, but it is good to review information that is on the voter display. What really bothered me was how can anyone determine a time limit for people that vote. I believe this further deters people with disabilities, the elderly and anyone that may need more time to even vote today.

I contacted a local TV station about this and the woman I spoke with at the station who found nothing wrong with it. She said it was legal to impose time restrictions when voting and hasn't heard a problem about this in the past. What? Perhaps it is because few people with disabilities are even able to access buildings to vote, or that the voting machines are inaccessible... Now people are being held to three-minute time restrictions... c'mon. One of the huge problems we have in this country is to get people out to vote and often it is the largest minority in the country - people with disabilities, that have the least say in who is elected. WHY?

I am shocked and think that this is totally discriminatory to dictate how much time a person may have to vote.. Here we are trying to reach more voters and there are enough challenges with accessible voting places, accessible voting machines and now three minute time restrictions......

Please share any information including your experience and whether this is even legal. I am concerned for people with disabilities, and any challenges who may be detered and or intimidated by voting because there under a three minute time clock. We want everyone to have the opportunity to vote.

Monica Moshenko, Mother, Advocate
Host, DisAbility News & Views Radio Show

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