Everyone recognizes the International Symbol for Accessibility (ISA): the blue and white picture of a person in a wheel chair. But many are not aware that the symbol’s conspicuous absence from storefronts has been the cause of many lawsuits across California, and specifically the Ocean Beach area.
According to Citizens Against Lawsuit Abuse (CALA), less than 2 percent of California’s commercial property meets applicable access standards, despite 15 years and more than 12,000 ADA lawsuits.
In Ocean Beach, approximately 30 businesses have been sued, said Denny Knox, executive director of the Ocean Beach MainStreet Association.
The Americans with Disabilities Act (ADA) was enacted in 1990 to protect a disabled person’s right to equal access. For 11 years, the amount of damages paid to plaintiffs for successful suits against negligent businesses was determined for each case based on the emotional and physical suffering caused by the ADA violation.
In 2001, an amendment to the federal law in California changed the penalty to a minimum of $4,000 per violation.
“That’s when everything hit the wall,” said an Ocean Beach business owner who spoke to The Peninsula Beacon on the condition of anonymity for fear of future lawsuits. “When you have a business like mine, and you have an ADA expert come in and they count seven or eight violations, well that’s $28,000, not only for the business owner, but also the landlord, so it’s double the fine “¦ You get whacked twice.”
According to Andy Kotner, president of Citizens Against Lawsuit Abuse (CALA), many lawsuits are not solely about compliance. Often times the ultimate goal is not the well-being of the disabled, but a quick settlement and easy money, she said.
Some business are being sued by people that have never set foot inside their establishment, tolerate greater obstacles inside their own home or are not even disabled at all, Kotner continued. And while many owners understand the reasoning behind ADA lawsuits and want to comply with standards, they are angry at the amount of reward money going to the lawyers and plaintiffs, she said.
“I’m more than happy to make my building compliant,” the business owner said, though he questioned the benefits of settling with lawyers who profit from the transaction. He added that the money spent in a settlement does not fix the real problem of updating the business.
CALA and Lawyers Against Lawsuit Abuse, APC, have been working hard to educate business owners of the ADA standards of compliance. But this can be difficult when regulations change on a regular basis.
“There is a difference between federal and state ADA laws, and it’s very complicated,” Kotner said.
Knox agreed that the rules leave a lot of room for confusion, and stressed that the business are only asking for a reasonable approach to reaching full compliance, such as a grace period or warnings, instead of litigation with no other alternatives. Lawsuits are not the most effective way of getting the desired effect, she said.
According to the CALA, there are government inspectors for fire codes, health and safety, labor laws and building codes, but when it comes to enforcing access for the disabled, there are only lawyers, judges and “professional plaintiffs” who may know little about building standards.
“We’re afraid of the end result, making business owners fearful of dealing with the handicapped, which should not be happening,” Knox said.
“Many of these businesses have recently remodeled and believed that they were compliant, but the federal law is so ambiguous that they never really know that they’re not compliant,” Knox continued, adding that many local business owners do not speak English well. “How are they supposed to understand the pages and pages of the federal law that is confusing to almost everyone?”
A common misconception regarding the rules is that older businesses are “grandfathered,” or exempt from ADA laws because their construction preceded the current regulations. While older buildings often receive relief or exemption from updated building codes, there is no such immunity from ADA.
This is a particular problem in the Ocean Beach historic area that has many aging structures, Knox said.
Another problem is that personal injury lawyers who sue a business often convince its owner to allow them to inspect their building, which leads to more trouble, Kotner said. Businesses should hire an ADA certified access inspector to evaluate their building, she continued.
There are currently a few measures in the works at the state level to establish an ADA certification program and train instructors.
As of May 2006, the state was finalizing a comprehensive handbook that will describe the step-by-step process for attaining state certification as an Access Specialist.
It is unknown when the program will launch or when the list of certified access specialists will be available. More information is available at (916) 322-4700 or www.dsa.dgs.ca.gov/CertifiedAccess.
Though complying with ADA code is the only long-term solution, Lawyers Against Lawsuit Abuse have some suggestions for businesses to reduce their ADA access lawsuit risk in the interim:
Because parking issues account for almost all ADA suits, businesses should consider bringing their parking area up to code first, then work their way through the other areas of the business as soon as possible.
Businesses should install conspicuous signs throughout the building stating, “Our staff are pleased to provide assistance to anyone requesting it. If you need help, please just ask. If you encounter any difficulty, please ask for a manager.”
They should also consider developing an employee policy statement about identifying and assisting disabled visitors and have all employees initial it.
The group also recommends that small business owners consider a Corporation or Limited Liability Company, instead of an individual or partnership business to separate their homes and private assets from their business.
The law firm also advocates that business owners should never hold real property (other than their home) in their personal name.
For more information, visit www.adalawsuits.com, www.sdcala.org or www.LawyersAgainstLawsuitAbuse.com.