Americans with Disabilities ACT
Laws are setup to establish and maintain order within a society to protect individuals and businesses. When laws are abused for financial gain, most often small business are targeted because they have little knowledge of the law and their rights, and may be afraid to challenge accusations for fear of additional retribution.
In 1990, the Americans with Disabilities Act (ADA) was established by then president George Bush “to prohibit employment discrimination, and impose requirements on access to public facilities, transportation and telecommunications” (PBS). The ADA helps many individuals; however, greedy lawyers take advantage of the law and target small businesses who violate some ADA laws regarding access to facilities. Local attorney Rick Blake works with small business owners that have unintentionally violated ADA codes to protect them from the abuses of predatory lawyers who use various tactics to “make a buck.” He does not dispute that the defendants (his clients) have violated the laws, but he recognizes that there needs to be leniency and a grace period for the client to fix the violation and bring it up to code. He tries to protect his clients from exorbitant attorney fees and additional abuses. Even though the ADA improves the lives of many people, many businesses are being taken advantage of with little opportunity to help themselves before they face potential financial problems, and lawmakers recognize that the laws need to be amended to protect businesses and reduce opportunistic claims.
The ADA was created to protect individuals with disabilities allowing for fair and easy access to public transportation and public facilities including concert venues, restrooms in restaurants and shops, and other small businesses. National chains such as Walmart and McDonalds, have teams of lawyers and heaps of money to monitor regulations and make necessary legal changes to comply with the codes. Unfortunately, this law, that set out to protect the disabled now hurts small business by abusing them with “an army of professional plaintiffs statewide” whose goal it is to make money at everyone’s expense (Brown).
ADA allows for all disabled people to have fair and equal access to all facilities, transportation, and communications regardless of their disability, and more importantly, all businesses must comply with the laws. The laws are regularly updated to conform with the needs of disabled members of the community. The most recent updates to the ADA were on November 21, 2016 and this “final rule provides that public accommodations that own, operate, or lease movie theaters are required to provide closed movie captioning and audio description whenever showing a digital movie that is produced, distributed, or otherwise made available with these features” (ADA.gov). The changes that the ADA implemented undoubtedly changed the lives for millions of disabled people throughout the country for the positive. The Department of Justice revises and updates the laws as well as monitors and enforces the laws. If businesses are out of compliance or disabled persons feel they are discriminated against, the DOJ will advise on the proceedings and how punishment and resolutions will take place.
Once the ADA was put into force, businesses had to comply with the new laws and implement the necessary changes at their own expense to allow disabled persons to access the businesses as any other person would. The cost of making the changes could be costly at first however, the expenses could be recouped as more people would now be able to shop or eat in restaurants that had been previously “architecturally” difficult to move in (building principles).
If a business has been cited for being out of compliance, it “has 15 days to fix the complaint” (Wang). Small businesses at times could be at a disadvantage and not be able to adhere to the laws because of financial restrictions or new building and safety codes that would require a large-scale renovation. Many smaller businesses have been targeted because “California [is] such a target-rich environment for ADA litigation” and “small businesses [are] terrorized by serial litigants” who prey on them and take advantage of the fact they are out of compliance and are willing to cooperate at whatever the cost to not lose their businesses (oc register). California “accounts for a whopping 40 percent of the nation’s ADA lawsuits (though the state makes up only 12 percent of the U.S. population)” and many attorneys come here knowing that they will be successful in filing minor claims (oc register).
Many small businesses comply with the laws regarding ease access into and out of buildings and restrooms, however predatory attorneys love California because it is easy and financially beneficial “to file frivolous lawsuits based on minor and technical deficiencies”(Brown). In San Jose, California, a serial ADA lawsuit filer, Scott Johnson, claimed that a gas station bathroom was out of compliance and that his client (that he paid to make the claim) would scald his legs on the hot water pipes as he rolled his wheel chair up to the sink. The owner of this business, Com Tam Thanh, was sued even though “we don’t even get hot water in here” and at no point was the wheelchair client in harm’s way(Gafni).
There is a small minority of serial litigants who go out of their ways to find potential business through trivial lawsuits. “Mega-filer” Theodore Pinnock has filed “well over 2,000 ADA/accessibility lawsuits and hundreds of allegations of false claims” and ” has offered monetary compensation (1) to identify properties with disabled accessibility issues, and/or (2) for visiting properties with such conditions for purposes of creating claims to file lawsuits” (ADA Abuse). Typically, the predatory attorney will send an investigator or CASp inspector, both of whom are paid a fee, to inspect various businesses to see if they are potentially out of compliance. If the business does not comply with ADA laws the predatory attorney will send in a handicapped individual to make an official claim. After making the claim the attorney then writes a demand letter stating what needs to be fixed and the amount of compensation required. The lawyer then will file a lawsuit to the courts stating what laws have been broken an then the defendant will have 30 days to file a written answer to the court. If the parties have not come to settlement terms in the allotted time the case will go to court and it may take up to a year before it is heard by a judge and a jury in a trial setting.
Fringe businesses such as liquor stores, smoke shops, and adult stores are easily targeted because of the type of goods they provide and want as little attention as possible. For these shops, paying off the attorney results in the least time consuming and least expensive method to avoid court. Even though the “shake down” method does not violate the law nor would it be considered morally wrong the “law is well intended but sometimes, I think abused by certain attorneys” who are out for financial gain (Blake). Harassment and extortion seem to be the goals of predatory attorneys while they sit back and collect fees. Predatory attorney’s have teams including expert witnesses, paid witnesses, and handicapped individuals who all play an expert role in abusing shop owners in their quest for money. When attorneys sue small businesses, the businesses are intimidated and have little understanding of the law and they do not attempt to fight back.
The law firm of Pinnock and Wakefield has filed more than 2,000 ADA lawsuits and several hundred allegations of false claims which have sparked concerns in the California courts. As the courts encounter more of these frivolous lawsuits, they are stepping in to monitor and regulate the cases that are being presented. The ADA compliance laws are fairly strict in their interpretation and implementation, however, judges have the ability to deal with “mega-filers of ADA/accessibility lawsuits [and] sanctioned [against] them for deceptive and punishable conduct” (ADA Abuse). The courts recognize these abuses and see how predatory attorneys take advantage of the laws as they are repeatedly seen in the courtroom with the same types of claims over and over. Recognizing that he took advantage of the legal system and business owners, “Pinnock was forced to resign with “disciplinary charges pending”, he was suspended of his right to practice law after San Diego Superior Court Judge Julia C. Kelety concluded that he “stole” from a disabled minor in another case” (ADA Abuse).
One such plaintiff James Cohan has filed at least 180 lawsuits throughout southern California. Cohan claims that he’s disabled with end-stage emphysema his hobby is suing small businesses who are “violating the Americans with Disabilities Act”(Brown). Cohan also claims that he needs a walker or wheelchair to get around and because of his condition he is limited to what work he is able to do. He uses these cases to create an income and “technically, legally they’re all frivolous…” and ”…arguably, he could be subjected to monetary sanctions…arguably his attorneys could be sanctioned if they knew, which is frankly why they’ve dismissed all the cases”(Brown). Ironically James Cohan was caught by “Eyewitness News… after his daily hike up a steep hill near his Sun Valley home. He was hiking without a wheelchair, walker or oxygen tank”(Brown). He is the perfect example of a person who not only harasses and extorts the small businesses but also has the law on his side because “technically” the buildings are noncompliant. Even though he claims, “I told you I do it out of the goodness of my heart because I’d like people to be in compliance with the ADA, I don’t make any money doing this”(Brown). His attorneys recognized the frivolous claims and “arguably his attorneys could be sanctioned if they knew, which is frankly why they’ve dismissed all the cases”(Brown). This is just a small example of how the law is abused and small businesses are taken advantage of. Cohan even went so far as to sue small business owner Betty Joseph whose building was in full compliance. These types of claims are growing and small businesses are starting to fight back.
These frivolous lawsuits are piling up around the state and the courts are overwhelmed. It has come to a point that “this plague upon the state’s civil justice system has risen to such a level that it can no longer be ignored by lawmakers in Sacramento” and with the small businesses being targeted, change is on its way(oc register). Small businesses are not denying the acquisitions of being out of compliance, however, they just want more leniency and fairness on the issue. For example Com Tam Thanh acknowledges that he is in violation, but should not be sued and penalized for not having the equipment to cover the hot water pipes in the men’s bathroom because he does not even get hot water in that facility. This poses no danger to anyone and only wastes the courts time and bottom line hurts a business owner trying to perform a service in the community. As more and more of these cases come to court they waste the court’s, the attorney’s, and the small businesses’ times. California has been named “the No. 1 ‘Judicial Hellhole’ in the nation last year by the American Tort Reform Foundation”(Daily News). Legislatures are recognizing that changes to the system need to be implemented and are getting input from small businesses to help them improve the law. It has been suggested that
“several legislative proposals would reform the system simply by requiring the aggrieved party to submit their complaints about alleged ADA violations to business owners in writing, and then allowing businesses a reasonable amount of time, usually 90 or 120 days, to fix any problems before civil litigation could be filed. Such federal bills include H.R. 241, the ACCESS Act of 2015, from Rep. Ken Calvert, R-Corona, and H.R. 4719, the COMPLI Act, from Rep. Jerry McNerney, D-Stockton”(Daily News).
These federal bills are much more reasonable than the previous 30 day amount of time and predatory attorneys may be slow to file as they recognize they can no longer intimidate and harass small business owners into paying. The original intent of the ADA was to protect individuals’ with disabilities, but greedy attorneys and plaintiffs have abused this law and have taken advantage of small business owners who may be out of compliance but certainly are not stopping those with disabilities from entering their businesses with slightly faded signs or a “curb painted the wrong shade of blue”(Daily News). California state has proposed several senate bills including SB 1142, SB 269, and SB 1186 that have been used to promote the benefits of the ADA while curbing the abuses of predatory attorneys.
In California on September 19th, 2012 Governor Jerry Brown signed into law SB1186 the disabled access law. There was wide acceptance for this law as it was passed 77-0 in the state assembly and 34-3 in the state senate and went immediately into effect. The main highlights of SB1186 include giving certain “business 60 days to fix an ADA violation and their statutory damages may be reduced from $4,000 to $1,000 – a 75 percent reduction and SB 1186 ends ‘demand for money’ letters from attorneys. Letters can still be sent to a business alerting them of a potential violation or infraction, but the letter can’t include a ‘demand for money’”(ADA Compliance Consultants). Even though these bills have helped many small businesses, there are still many that are being taken advantage of. After working with Rick Blake it was evident that people are still easily manipulated and coerced into paying off demand letters out of fear of violating the law and potentially losing their businesses.
Even1 though these laws are enforced the ADA laws are strict and clear in terms of what violates the law and how the violators should be punished. Many supporters of the ADA feel that few concessions should be given to small businesses who violate ADA laws because it is the
1 Counter Claim – 2 paragraphs
small businesses responsibility to know and understand the law. Small businesses can easily
request the services of CASp inspectors to evaluate their properties to see whether they are compliant or not.
CASp inspectors know and understand the laws and can bring businesses into compliance. As a small businesses owners should also be aware of changing laws and changes within city codes, because it is ultimately their responsibility. They should have money set aside as well as a contingency plan for potential issues that could come up. If owners just read the guidelines and take time out of their day to make sure their entire business is up to code they would never even have to step foot in court.
The ADA laws were set into motion to prohibit discrimination of disabled individuals in all areas of public life and in the workplace. The benefits of these laws have helped thousands of disabled individuals access venues from concerts to grocery stores and have helped provide them with a better quality of life. However, these laws have been taken to task by predatory attorneys who strictly adhere to the laws and attack small businesses for minor infractions that do not jeopardize access to venues for the disabled. Attorneys have the law on their side so they can easily scare small businesses into paying more than they should to fix these violations. Recently new bills have been created to limit coercive actions and unfair lawsuits against small businesses, however, after working with Rick Blake it is obvious that more needs to be done to protect these small businesses.