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Read Fred Shotz on "Why suing is important."



Business strikes back:
California firms press state bills to stop access lawsuits

By Mary Johnson

On May 3 California access advocates troop to the State Capitol Building in Sacramento to the hearing in the Senate Judiciary Committee on SB 855, titled "Special access: liability."

Though you wouldn't know it by the name, the bill is one of two "Notification Acts" -- so far -- being considered by the state legislature this session. SB 855 is sponsored by Calif state senator Charles Poochigian of Fresno. Supporters call it "ADA Fix It Legislation." The other, AB 20, sponsored by state assemblymember Tim Leslie, a Republican from Tahoe City, has not yet had a hearing.

SB 855 has the support of many business associations including the California Association of Independent Businesses , the California Chamber of Commerce and the California Business Properties Association, who described the bill as giving "commercial property owners the ability to fix a potential Americans with Disability Act (ADA) violation pursuant to California's 'Unruh Civil Rights Act' and avoid costly legal and attorney's fees."

SB 855 would require a disabled person faced with an inaccessible business to first give 4 months' prior notice -- 120 days -- before suing, to give businesses time "to fix the alleged violation."

Observers say Leslie's bill is what's known as a "spot bill" -- a bill that contains only intent or non-substantive language, but is holding a spot until major changes can be drafted and amended into the bill later. It's expected that Leslie's bill will ultimately call for a 60-day notification provision. (More from the California Foundation of Independent Living Centers. )

Poochigian's office characterizes his bill as "legislation to amend California law and give our state's property owners a chance to cure violations before being hit with predatory lawsuits for punitive and other damages "

"Call or write your state legislators and urge them to reform the law," says Poochigian's website.

Reform the law. Predatory lawsuits. Drive-by lawsuits.

A low rumble for years, the California business community's calls for a law to "curb access lawsuits" reached a dull roar when legislation was passed a few years back raising the amount of monetary damages that could be awarded to a disabled individual denied access.

Rather than forcing businesses to begin providing access voluntarily to deter suits, which had been advocates' intent, it seems that California business did nothing but push harder to fight the law with Notification Act legislation.

Last summer, Gov. Arnold Schwarzenegger, in vetoing a bill that would have standardized damage awards for disability discrimination, sent a strong message: he wanted a notification act bill to pass. The bill he vetoed had been amended to include a "notification" clause, but by the time it got to the Governor's desk that provision had been deleted.

Schwarzenegger was not happy:

"Instead of providing incentives to correct violations in buildings and facilities to assist the disabled community, this bill will cause the focus to revolve around litigation," he wrote in his veto message:

Businesses are often faced with a lawsuit that has a potential to be financially damaging in defending or paying increased fines for mistakes such as the height of a sign that can be easily corrected. It is unfortunate that [Notification Act] legislation....that would reform the system did not make it through the legislative process.

I would welcome legislation that would provide an avenue for businesses or governments to correct potential violations prior to being subjected to fines or civil liability. ....

Now the governor has his wish: two bills -- so far -- which would weaken state and federal access laws and give businesses ways to avoid providing access.

The California Chamber of Commerce, which calls itself a "sponsor" of Poochigian's effort, says the bill "will create a process where businesses have the opportunity to make a good faith effort to correct an alleged ADA violation before being subject to a lawsuit."

Why, one may wonder, doesn't a business simply correct their access violations, without waiting to be "sued" or notified?

But that's not how the access battle has played out -- either in California nor across the nation.

Instead of obeying access laws, businesses have chosen the curiously mean-spirited approach of ignoring calls for access, ignoring informative seminars, ignoring laws on the books -- for decades -- and then, when sued, howling like stuck pigs and screaming for "reform" of laws that "hit them blindsided.'

A curious approach. But it works -- because by and large the disability community remains, simply, silent.

As fall turned to winter, newspapers the length of California editorialized about the need for a law. ( Read the Carmel Pine Cone editorial.) Poochigian wrote in the San Diego Union Tribune that "abuse of the current system has resulted in great distress to many family businesses in San Diego and across the state.

"Ironically, this law that was originally designed to open doors for the disabled has forced some business to close their doors altogether," he went on, singing the familiar refrain: "The Americans with Disabilities Act should be about providing access, not a payday for shakedown artists."

" 'Legal extortion'" that's the best way to describe it. A few unsavory lawyers are busy enriching themselves at the expense of small businesses, the taxpayers and, most of all, people with disabilities," wrote CA Assemblyman Doug LaMalfa, R-Richvale, In the Red Bluff (CA) Daily News, Feb. 18, 2005. "These legal predators are using those with disabilities as pawns in a racket that makes a mockery of the federal Americans with Disabilities Act. ..Rather than genuinely trying to improve life for people with disabilities, they have only one goal: to use the ADA to shake down defenseless mom and pop businesses...:

And the fight goes on...

"Over recent years a handful of clever trial lawyers has quietly manipulated the noble spirit of the Americans with Disabilities Act to extort millions from small businesses, " wrote Republican California legislator Tim Leslie in the Feb. 7 Orange County Register. "Wrapped in the flag of access for all,' these attorneys have harnessed the ADA to fatten their wallets. .... No matter how much effort has been put into providing total access to the disabled .... Even the smallest, most technical violations open the door to a massive lawsuit,.this practice has been honed to such precision that "drive-by" lawsuits - complaints where a person simply drives by the premise without stopping to use the facility -- are common. This scam is being carried out all over the state...."

One might have raised the issue that one could not use the facility if one cannot get in, and that a step at an entrance is easily seen from a vehicle -- what's the point of stopping by if it's clear you can't get in? -- but that never seems to faze such critics.

In fact, articles like this get little rebuttal, which is why access critics seem to feel so free to wrtie them.

In this case, however, the California Foundation of Independent Living Centers' Vince Wetzel wrote a response, which was also published:

"Most businesses that are sued for violations of the Americans with Disabilities Act and other access laws are in fact not obeying the law," Wetael wrote. " Leslie's legislation "would solidify a loophole for businesses to circumvent the law.

"No matter how many times people complain about frivolous lawsuits or unscrupulous lawyers, the fact remains that people with disabilities are not able to patronize many businesses because they are turned away.

"As the disability community has seen, many in the business community are willing to wait until they receive a lawsuit to do anything about a lack of accessibility. As long as businesses can get away with not spending to make their business accessible, they will likely do so." (Read Wetzel's Too many businesses ignore law. )

Not to let Wetzel have the last word, Richard Deight, who identified himself as an architect, wrote in a letter to the editor that "Businesses are not, as Wetzel claims, 'ignoring' one of the most misunderstood pieces of legislation in history. The problem, as I see it, is the ADA's lack of common sense, combined with overzealous enforcing agencies. ..."

If this sounds surprisingly like the speeches Clint Eastwood gave in 2000 on Crossfire and Hardball, it's not surprising.

Eastwood was its 2000 version, but it continues today: a well-orchestrated national campaign to get out of obeying the ADA's access requirements.

It gains steam because access advocates have been, with one or two exceptions, virtually silent on the issue . They've gathered no organizational supporters from liberal groups. They've made little effort to get stories into the news media about why access is important.

In the void, the anti-access forces are having a field day.

The Vacaville, CA newspaper tells of an effort by "a coalition backed by the Chamber of Commerce" to build a $500,000 war chest to fight lawsuits from "two disabled advocates from Dixon -- Ron Wilson and Byron Chapman -- who repeatedly have filed complaints against local businesses during the past four years, costing owners hundreds of thousands of dollars in renovations, some of which may have been above and beyond what is required by law."

The coalition says it is also trying to educate businesses about their legal requiremetns for access, but the thrust of the story is the horrors of the suits.

Longtime Vacaville restaurateur Frances Murillo said she first encountered the pair in 2001 when she received a letter complaining that handicapped parking, access ramps, exterior signage and restroom facilities at her East Monte Vista Avenue restaurant were out of compliance with existing regulations. The height of the restaurant bar also came under fire, as did access doors.

When the dust cleared, Murillo had spent $100,000 on upgrades in an attempt to appease the pair.

They kept coming back - measuring, taking photographs and, Murillo said, making her life a nightmare.

"Everybody's welcome here, but when you come in and start harassing, that's going too far," Murillo said. "Since 2001, he's (Wilson) been after me. After all I've done, he's still after me.

I spent $30,000 on doors alone - where do you draw the line?"

Two weeks ago, Murillo drew the line. When Chapman and Wilson showed up at her restaurant, she said she refused to serve them and ordered them to leave. They didn't and Murillo called the police.

Police told Murillo that they couldn't forcibly remove anyone unless they were causing a disturbance or committing a crime.

The confrontation finally degenerated into camera wars with Murillo taking pictures of Chapman taking pictures of her.

"I have lots of handicapped people who come in here and they're happy to eat here. What's wrong with these guys?" Murillo asked....

...Denise Del Piccolo of Vicini's Restaurant told the newspaper she'd received a letter from the pair. "The letter gave the restaurant owner 10 days to reply and 30 days to come into compliance. Later, she said, a complaint was forwarded to the city.

Del Piccolo, who wound up spending $2,000 to $3,000 on the upgrades, said she didn't mind complying with the law for disabled access but resented being threatened.

"They terrorize businesses," Del Piccolo said.

When the ADA was in Congress, a number of advocates worried that, if enforcement of the law's access provision was to be left to the filing of individual lawsuits, there would be little compliance -- and people who filed lawsuits would be branded as troublemakers.

And this is exactly what's happened.

Shortly after we published our article on Jarek Molski and others who have filed access suits in California, Molski was hauled up before Federal Judge Edward Rafeedie, who accused him of engaging in a "scheme of systematic extortion"; said he was was "misusing a noble law" and on Dec. 10 formally designated him a "vexatious litigant" -- someone who files lawsuits "maliciously and without good cause." Molski was forbidden to file further suits without judicial permission beforehand. (More from the San Luis Obispo Tribune.)

So was longtime disability rights activist Patrick Connally. Both men have filed numerous suits for access.

"When the thousands of war veterans come home from Iraq, with their amputations, I can say I fought for their place here," Connally said. "What will businesses tell them when they cannot get a job or even go out to dinner with their families?"

Connally told the Marin Independent Journal in December that Rafeedie's actions were politically motivated. The Journal has repeatedly reported on access suits; like other papers along California's central coast, its coverage has focused almost exclusively on the sufferings of the business community

Connolly slipped under the radar screen, but Molski became the whipping boy of the anti-ADA access crowd.

The following month, a judge dismissed a Molski suit against Peachy Canyon Winery after the winery said it had access modifications. Winery attorney Jere Sullivan presented the news to reporters as a way to "defeat Molski" -- as if the access upgrades were not the issue. Taking a page from the Clint Eastwood Lawsuit Defense Manual, Sullivan told reporters, "I'd suggest that any other defendant file the same motion for summary judgment that we did," Sullivan said. "We proved to the satisfaction of the court that we fixed everything. My clients think what (Molski) does is extortion and he shouldn't be collecting money off this."

As our story also reported, filing lawsuits is about the only way to achieve access.

Molski's spate of suits began having results. He had sued a number of Morro Bay businesses last fall, and in November the city of Morro Bay told business owners it would waive all building and planning fees on accessibility upgrades until July 1, 2005, to allow businesses to make access modifications.

And the San Luis Obispo Tribune reported that the Frog & Peach, McCarthy's Irish Pub and Bull's Tavern -- three local bars -- had all made access changes, noting that the three drinking establishments were among the "more than 50 San Luis Obispo County businesses sued by Jarek Molski." Bill Hales, the managing partner of the three bars, had told the reporter it was "just too expensive to fight" the suit, so they'd made them accessible instead.

People seem to want to believe that businesses will obey the law voluntarily, without being sued. It's a nice idea. Unfortunately, it seems to be a fantasy as well.

Catherine Hess's story, Barrier to entry: Retailers are slow to accommodate patrons with disabilities, from the Jan. 26, 2005 San Francisco Bay Guardian, is the latest of many stories to report that this isn't the case. "Small businesses appear unwilling to act in the absence of a 'hammer' such as litigation or fines," Herb Levine of the Independent Living Resource Center told Hess. "We came to these conclusions very reluctantly," Levine told her. "Litigation results in more access than our attempt to collaborate." (READ STORY).

"I offered, through the local Chamber of Commerce, to give any business in town a one-hour free consultation on practical solutions to make their business accessible and attractive to persons with disabilities," California design consultant Dennis Sharp wrote to Rep. Tim Leslie recently. "I did not receive even one request for my service.

"I later organized a free seminar on the ADA and California's Title 24, with speakers and refreshments, for our local businesses. I publicized the event and sent out many invitations. I set the time so that it would not interfere with regular business hours. The seminar was so poorly attended that speakers almost outnumbered the attendees. "

It is now 2005, and I have lost my optimism and naïveté. I no longer think that businesses would happily comply with the law if they only knew what to do. Instead, I have become used to a climate of obstinacy, apathy, and resentment against the disabled community.

Indeed, it has become clear to me that litigation is the only means available to obtain my civil rights under the law. Enforcement by building officials and government entities is sadly lacking.

The percentage of persons with disabilities who have the means, the strength and the courage to drag themselves through a very unpleasant experience, where there is no guarantee that they will be successful, is very small. That means that a few are acting for the many, and because they are visible, they have become targets for the media.

Posted May 2, 2005.

Mary Johnson edits Ragged Edge.

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