Editorial: Stop the shakedown of small businesses
If a business in this country is sued for lack of compliance with the Americans with Disabilities Act, it’s nearly an even-money bet that the business will be in California. This state is No. 1. By a lot.
A legal firm that tracks these things reports that over the last decade 33,100 such claims were filed in federal courts in California, or nearly half of all such lawsuits filed nationwide.
None of this means that businesses in California are less likely to make required, appropriate accommodations for disabled customers. What it does mean is that when enforcement of a law is left entirely in the hands of a citizen posse, as has always been the case with the ADA, those citizens are most likely to act in places in which the reward for doing so is greatest.
In most other states, any awards won in a federal disability-access case are limited only to the amount of legal fees. In California, which has its own Unruh Civil Rights to protect against discrimination by disability, plaintiffs can receive additional awards of thousands of dollars per violation.
This has created a California cottage industry, led by a small but prolific band of what are known as “high-frequency litigators,” or disabled individuals who roam about and file bushels of lawsuits against businesses that are not in letter-perfect compliance with ADA regulations.
Over the years, the Legislature has sought to address abuse in this arena. It created a Certified Access Specialist Program that enables a business to hire a trained inspector to identify any deficiencies, make any necessary upgrades and then receive temporary immunity from disabled-access lawsuits. It enacted special procedural requirements that apply only to high-frequency litigators.
None of this has stopped the flood of lawsuits.
Carlos Reyes, owner of Olas de Carlos Surf Grill in Camarillo, knows the story too well. After he was sued last summer, his landlord made some technical corrections and then paid about $10,000 to settle the suit. Now, Reyes has been hit again with another suit, this time regarding the slope of the parking lot. His only option now might be to close up shop.
The litigant in the latest case, Anthony Bouyer, has filed more than 500 such lawsuits in federal court over the last three years, and 35 state lawsuits in Ventura County Superior Court this year alone — eight on April 25, nine on May 9.
It’s time for the Legislature to take stronger action. The targets in these lawsuits are almost always small businesses, often minority-owned businesses. Typically, they can be settled for $10,000 or so – a big hit to a mom-and-pop business, and a decent payday for a plaintiff filing lawsuits by the dozen, even after splitting the awards with a lawyer.
A measure that received unanimous approval in the Judiciary Committee is now before that state Senate. Under Senate Bill 585, a defendant would first have to be served with a demand letter and given 120 days to correct any deficiencies. If an alleged violation is corrected within those 120 days, the business would then not be liable for any damages or for the cost of plaintiff’s attorney fees.
The bill is opposed by groups advocating for the disabled, including the California Council of the Blind. Their concerns must be noted, and a commitment made to monitor any effects on disability access should the bill become law.
But this California parade of naked legal shakedowns of small businesses must end. The Legislature should send this bill to Gov. Gavin Newsom before the summer is out.
This article originally appeared on Ventura County Star: Editorial: Stop the shakedown of small businesses
