When it comes to ADA access, California is arguably one of the best states in the nation. One reason for this is that California allows plaintiffs the right to compensatory damages of $4,000 per access violation, plus attorney’s fees, under the Unruh Civil Rights Act. Most states only allow litigants to collect attorney’s fees and injunctive relief, meaning that defendants must fix the ADA violations. However, a handful of California lawyers and their plaintiffs seem to be using the UCRA for the sole sake of cranking out hundreds of ADA access “drive-by” lawsuits, raking in millions of dollars in the process. But the true costs of these lawsuits may be an increase in ill will toward people with disabilities, plus fanning of the flames of legislation that weakens ADA accessibility laws.
In order to sue under the ADA, the plaintiff must have a disability that has been affected by the violation and must have visited or attempted to visit the business being sued. When a person abuses the law by driving around purposefully looking for obvious violations such as no accessible parking in order to file lawsuits, the media refers to their actions as “predatory,” frequent flier” or “drive-by.” Armed with a list of businesses and violations, the person blankets an area with lawsuits and/or demand-letters to settle for anywhere from $4,000-$12,000 or more. Follow-up to check on corrected access is rare.
“One problem with drive-by demand letters is, I’ve heard that some larger businesses just set aside a ‘slush fund’ of pay-off money,” says Margaret Johnson, advocacy director for Disability Rights California. “It is cheaper to pay people off than fix access issues.” The media story becomes “ADA drive-by” when it should be focusing on failure to address violations of a law that has been on the books since 1990.
Another tactic employed by predatory plaintiffs is to enter multiple businesses with the sole intent of finding minor violations, like a mirror that is an inch too high. Southern California attorney Morse Merhrban has filed close to 1,000 or more ADA access lawsuits. His website advertises: “Confined to a wheelchair in California? You may be entitled to $4,000 each time you can’t use something at a business because of your disability. Some examples are mirrors in restrooms that are mounted too high on the wall to see your reflection; dispensers (paper towel, soap, toilet seat cover, etc.) or clothing hooks that you can’t reach because they are mounted too high above the floor.”
Alfredo Garcia — a paraplegic who has filed more than 500 lawsuits — and Mehrban sued a restaurant in Bell, Calf., because a bathroom mirror was too high. When a surveillance video showed no one in a wheelchair visiting the bathroom during the four times Garcia alleged he ate at the restaurant, they dropped the suit.
In some cases the actions of serial litigants result in better access, but they often cause a backlash against wheelchair users and the ADA. In 2006, NEW MOBILITY reported a story on Jarek Molski, a paraplegic from Los Angeles who had filed hundreds of ADA lawsuits, 223 of which were filed with San Francisco-based attorney Thomas Frankovich, allegedly garnering the attorney an estimated $10 million. In 2004 a district judge ruled Molski a “vexatious litigant.” A series of appeals culminated in 2008 when the U.S. Supreme Court rejected his appeal, meaning he can no longer file access lawsuits against businesses.
From Local to National Backlash
Frankovich says Molski and the dozen or so serial ADA plaintiffs he has represented are activists and crusaders. Mary Boegel, an L1 para, would disagree with Frankovich. Boegel, injured at 22 in 1973, understands discrimination. She spent years as a fierce advocate working at the first CIL in Berkeley alongside Ed Roberts and Judy Heumann. Fairly recently she and her husband went on a vacation in Cambria, a small town on the Central California coast. “There was ad-hoc access everywhere, yet I experienced very negative stereotyping, and could see a lot of fear and apprehension when I wheeled into establishments,” she says.
Boegel recognized the behavior as downright avoidance. “It was surreal and shocked me, like I was back in the ’70s.” During her stay Boegel learned that Molski had combed through the town quoting the ADA and had sent out huge lawsuit threats that cost the town a lot of money. “He also left people with the assumption that this could happen again anytime a wheelchair user pulls that card on them.”
According to the website ADAabuse.com, most predatory lawsuits are filed by less than a dozen California lawyers. The thousands of lawsuits they file have fed a continuous barrage of media coverage, the spin being that ADA lawsuits threaten the viability of businesses in the state. This has whipped the business community into a frenzy of fear, which in turn has led lobbying interests to take action against predatory lawsuits. In April, California Senate President pro tem Darrell Steinberg (Democrat) and state Sen. Bob Dutton (Republican) introduced California SB 1186. The bill had three main provisions. First, attorneys would be required to send a notice letter, listing any alleged construction-related violations, at least 30 days before filing a lawsuit. Second, “demand for money” letters would be banned. Third, landlords would be required to disclose whether their buildings or properties are state certified and in compliance with access laws.
Introduction of the bill, specifically the “notification and 30-days to fix violation before a filing a lawsuit” drew swift opposition from disability organizations statewide. On behalf of Disability Rights California, Johnson wrote an editorial saying, “Justice delayed is justice denied. The same can be said about equality. Saying that 22 years after the ADA mandated access, businesses can’t be held accountable without a 30-day notice of a lawsuit is like hanging out a sign on the first day of school, saying, ‘Sorry, we aren’t integrated yet, but let us know 30 days in advance if you intend to sue for your right to come in.’”
Californians for Disability Rights (a different group than Disability Rights California) responded to the waiting period in a letter to Sen. Steinberg, saying like all waiting period legislation, SB 1186 allows for the continuing violation of the civil rights of people with disabilities until the offending party is “caught.” Also, like all waiting period laws, it excuses non-compliance, no matter how bold or long standing, from any penalty.
“I’ve fought these bills every time they come up,” says Richard Skaff, 68, founder and executive director of Designing Accessible Communities. Going on his 34th year as a para, Skaff has been fighting to improve access since 1981. He founded the Marin CIL, worked as ADA coordinator for the Department of Public Works and then worked as deputy director of San Francisco Mayor’s Office on Disability. “There is big money behind these bills, and it’s not just California,” says Skaff. “The ADA has become a wedge issue for tort reform and big business interests, and they are using predatory lawsuits as a scare tactic to weaken access laws on a national basis.”
In the first quarter of 2012, lobbyists spent $13 million on HR 881, a national bill that proposes a 90-day “notification and right to repair” waiting period before an ADA lawsuit can be filed. “The waiting period tells businesses, ‘Don’t worry about access until you are caught. Then we will give you 90 days to fix it with no penalty,” says Skaff. “Imagine if they had spent that $13 million on helping bring businesses up to code?”
Working Together is Best
In May, SB 1186 passed the California Senate floor 36-0. The disability rights community was not happy.
Currently a legislative committee of approximately 30 members from disability rights organizations, members of both sides of the political aisle and business interests are negotiating details of the bill. The next version is expected to come out in August before going on to the state Assembly, and eventually, the governor. As of July 3, the disability rights community had managed to get the 30-day waiting period removed, for now at least.
The mid-July form of SB 1186 includes the following measures:
• Individuals and attorneys are prohibited from sending written “money letters” or issuing oral demands for money for alleged ADA access violations.
• Commercial property owners are required to state on the lease or rental form if the property has been inspected by state-certified access inspectors.
• Potential conflicts between federal and state laws in construction-related accessibility must be examined and addressed.
• Initiatives that would lead to greater compliance will be examined.
Disability Rights California supports this version of the bill but also says it is still in flux and so isn’t likely to stay this way. Other organizations are waiting to see how things unfold.
Anthony Goldsmith, civil rights attorney and member of the legislative committee of Californians for Disability Rights, is on the SB 1186 working group. “It has been a challenging process. However, one of the rewarding things has been talking with people across the aisle who I thought were hostile to disability rights and finding they are for disability rights. And the same people who perhaps thought I was non-caring about owning a small business found out I do care.”
The level of ADA compliance in California is much higher than in other states because of the right to litigate. “Nationally I wish folks had the same rights we do in California,” says Goldsmith. “Lawyers that we work with are careful about the cases we select and we make sure there is injunctive relief [getting the ADA violations fixed] … before we even discuss what the damages are.” If one of Goldsmith’s clients runs into an inaccessible parking space, not only will it be fixed, but an inspection of the premises will be scheduled to make sure the whole property is in compliance. “When I’ve sued a business [on ADA access issues], nobody else should be able to file a legitimate ADA lawsuit against the business if they fix the issues we found. I see that is part of my duty to the public as a civil rights attorney.”
Goldsmith says the best way for a California business to protect against getting sued is to hire a Certified Access Specialist Program inspector — the CASp was set up in 2008 through California Senate Bill 1608. A CASp inspection provides a business with a complete list of access violations — approximate cost $550-$1,800, depending on size and building location. To a predatory plaintiff, a CASp certificate on a business window is the equivalent of a cross to a vampire because businesses that have been CASp-inspected are entitled to a 90-day stay of the lawsuit and an Early Evaluation Conference lawsuit. Goldsmith recommends checking a CASp inspector’s references to make sure they have a good reputation.
Litigation, says Skaff, should be the last resort. “When I find an access problem at an establishment, the first thing I do is ask to see the manager or owner, inform them of the violation and give them my card. If they make changes, there is better access and no lawsuit. The lawsuits I have filed were done because I could not get the local building department to do the right thing, I could not get the business or building owner to file a complaint with the licensing board to have action taken against the architect or contractor, and get the business or building owner to file a lawsuit against the architect or contractor and get their insurance to pay for the correction.”
It is ridiculous that enforcing the ADA keeps getting thrown on the backs of people with disabilities, says Skaff. “In terms of enforcing ADA access code, there is a failure of the whole system, starting with architects, contractors, builders, and building inspectors who are supposed to be working within ADA access guidelines but aren’t. I see this same failure all across the country. Do you ever see newspaper articles about that?”
“The goal we all share is to build partnership between businesses and the disability community, promote full and unrestricted access, and help businesses get resources to comply,” says Johnson. For instance, small businesses are entitled to a $5,000 federal tax credit per year for access improvement.
To learn about access requirements, Johnson and Skaff recommend contacting the ADA National Network to find ADA Regional Centers, which are there to help businesses with access information.
From a business perspective, providing access means a bigger revenue stream from a larger consumer base. Currently one in five Americans has a disability, and that number is quickly growing as the population ages.
• ADA National Network, 800/949-4232; www.adata.org. Click on Regional Center on the lower left part of the page to find ADA Regional Center.