“I’ve talked to a lot of business people and they’re very afraid”

by Walter Olson on June 9, 2014

California law provides unusually favorable financial rewards for ADA complaints, and the state’s legislature has largely ignored years’ worth of pleas from small businesses for relief from serial complainants. So John Perez is no longer taking walk-in customers [Manteca Bulletin]:

Ever since Carmichael-based lawyer Scott Johnson slapped civil rights lawsuits against at least 21 Manteca businesses seeking punitive damages for allegedly being out of compliance with Americans with Disabilities Act access rules he’s been locking the front door to his South Main Street cabinet shop, Perez & Sons.

Johnson (earlier on him here and here) has announced his intent to sue The Hair Company for at least $68,000 although owner Janice Ward says none of her handicapped customers have ever complained. “A good number of the targets of Johnson’s 3,000 lawsuits throughout Northern California over the years have been forced out of business.”

{ 23 comments }

1 Amy Alkon 06.09.14 at 12:37 am

Awful. If any good could come of this, perhaps it could be some of the voters who patronize these businesses realizing that seemingly good laws have unintended consequences.

2 Ron Miller 06.09.14 at 11:03 am

Let’s talk about the merits on cases and not whether business people are afraid. Business people are always afraid. And we need to stop using one guy’s overreaction as indication of anything other than one guy’s thoughts.

I have grave concerns about anyone filing serial lawsuits. I also have grave concerns about businesses that thumb their nose to the ADA. I don’t have the answers. But I don’t think we should substitute John Perez’ judgment for our own on these things.

“A good number of the targets of Johnson’s 3,000 lawsuits throughout Northern California over the years have been forced out of business.”

Really? What is the number? What is that based on? Did someone go back and look? What constitutes a good number? Why do we insist on anecdotes without foundation over data?

3 Allan 06.09.14 at 1:31 pm

the law says it is illegal to discriminate against the disabled.

Does anyone disagree with this proposition? It is similar to the law that says you cannot discriminate against blacks.

If restaurant had a “Whites Only” sign on the front door and a “Blacks Allowed” sign on the back door, would anyone say this was ok?

The only difference is that it is more expensive to make some places equally accessible to the disabled than it would be to make it accessable to people of all skin colors.

I do empathize with businesses because it costs money. There is a line out there somewhere, where we would say it is reasonable to impose the cost on businesses. The only way to find that line is to litigate, I suppose.

If it really cost too much to do the mitigation, one would think someone would change the law.

If the blame is on serial litigators, I think Walter is shooting the messenger in this particular matter. If the blame is on the legislature, I think he has hit the target.

I would point out, however, that Walter is engaging in a bit of libertarian blather. I would think that he agrees that there is a potential problem (discimination against the disabled), but he does not propose a solution, he just attacks the way it is currently being done.

4 Robert 06.09.14 at 2:59 pm

Here in California, I am prohibited by law from filing more than 2 small-claims/year.

Why can’t there be a similar limit for these ADA lawsuits?

5 Hugo S Cunningham 06.09.14 at 3:16 pm

Allan–
It can be a matter of degree.
A restaurant will be punished for serving “Whites only,” but not for piping Country rather than Soul in its Muzak.
Similarly, while restaurants should be wheelchair accessible, I get the impression from Walter’s posts that some of these expensive lawsuits are for minor technical violations that do not seriously restrict accessibility.

6 DensityDuck 06.09.14 at 3:32 pm

” I also have grave concerns about businesses that thumb their nose to the ADA.”

The issue is that these business aren’t “thumbing their noses” at the ADA. It’s difficult enough to be in compliance with an ever-shifting set of requirements (did you know that there is a specific shade of blue and a specific stencil that must be used to mark handicapped spaces, and that it’s an ADA violation to use a different shade or a different stencil?) But in some cases it is not-exaggerated impossible to comply; San Francisco’s North Beach commercial district was built with business frontage a wheelchair can’t enter due to steps, but the neighborhood is subject to city-instituted architectural regulations that prevent remodeling.

7 DensityDuck 06.09.14 at 3:40 pm

“the law says it is illegal to discriminate against the disabled.”

No, what the law says is “sue first and ask for help later, if at all”, because the writers of the law took the (admittedly reasonable) presumption that everyone should have equal access without having to beg for help. Unfortunately, they also assumed that people would be generally reasonable and ask for help if they needed it, rather than being miserable jerks who would troll for violations and make a quick buck off of it.

8 gitarcarver 06.09.14 at 5:17 pm

the law says it is illegal to discriminate against the disabled.

Does anyone disagree with this proposition? It is similar to the law that says you cannot discriminate against blacks.

I disagree.

First, I find it hard to believe that a mirror that is 1/2″ too high according to some arbitrary standard is “discriminatory” in any way whatsoever. To equate the height of a mirror to denying someone a place to sit at a lunch counter is insulting.

Secondly, I don’t accept the premise that treating people equally is discrimination. I believe that making different standards is discriminatory and prejudicial.

Third, the so called “standards” don’t remain “standards” long. They change. It is unreasonable to hold a business to an ever changing standard that does not involve their area of expertise. I expect a restaurant to know food safety regulations. I don’t expect that a restaurant will know when the incline of a ramp for access has been changed.

Lastly, the question that must be asked is “where is the harm for ADA violations?” If a person cannot get an item off the shelf, what is the better remedy? Fixing the problem or rewarding someone for finding a violation?

9 Allan 06.09.14 at 5:23 pm

I understand the north beach problem. This is one of those situations when you get sued whatever action you take. Sort of like when a school is asked to host a religous service. Say yes, and the athiests sue you under the establishment clause. Say no, and the church sues you for first amendment violations.

Our entire constitution and statutory code is filled with heads you win, tails I lose issues.

Perhaps we should have a process where businesses and governments can throw the issue to a court and say “what do I do?” The businesses can forgo having a lawyer by saying that they will abide with the court’s decision and insist that any legal costs be taken up by both sides of the issue.

10 Bumper 06.10.14 at 12:45 am

Allan,

This isn’t about the poor, downtrodden disabled. This is about the money. Find a disabled person, find a mirror 1/2″ too high and sue, no provision for letting the business lower the mirror first, no, just lots of free money for the patsy and the lawyer to split. Good living to be made there with little to no overhead and all in the name of the disabled. Do yourself a favor, do a little research, Google is your friend (well, as long as you don’t mind them selling all your personal information, but I digress) or search through the archives of Overlawyered. Then come back and preach to us about the pure driven snow.

11 Allan 06.10.14 at 11:19 am

gitarcarver and Bumper,

You really think it is ok to discriminate against the disabled?

I might agree that having a mirror 1/2 inch too high is not disrimination. But whether it does is not relevant to whether I think we should discriminate against the disabled. Instead, it is a question of what exactly discrimination is.

You are disagreeing with the law and the remedy. Fine. Get a better law and remedy. That is what elections are for. Apparently, the people of California like the system.

12 D 06.10.14 at 4:01 pm

The only way to find that line is to litigate, I suppose.
Allan, your creativity in this matter is lacking.
Second, I think gitarcarver made it very clear that what you advocate is, by linguistic definition, discrimination. And you have not addressed the non-standardization of standards question.
Third, That is what elections are for … No, that is what the 1st ammendment is for. Let me fix this for you: Apparently, the lawyers of California like the system.

.

13 gitarcarver 06.11.14 at 12:59 am

Instead, it is a question of what exactly discrimination is.

That may be true Allan, but as these lawsuits and awards for not meeting changing criteria is what is being discussed. You believe these suits are to prevent or stop “discrimination.” It is you who have made the claim that having a mirror 1/2″ too high is “discrimination,” not me.

Apparently, the people of California like the system.

Either that or the people are too scared to take on what would be shouted from the mountains as “discrimination” by people such as yourself.

But as you feel the regulations promote fairness and are “anti-discriminatory,” does your home pass the same building standards for the disabled? Have you measured the height of the mirrors in your bathroom? Are all of your door lock and handles a lever type? Does your dining area meet certain height requirements? Do your hallways and interior door frames allow the passage of a wheel chair? Do you have grab bars in your bathro0ms?

If not, then why are you personally “discriminating” against the disabled?

14 Bumper 06.11.14 at 3:21 am

Allan,

The operative word here is accommodation, not discrimination. You might make a case for discrimination if owner of Che Fro Fro announced they would not longer serve fat people because he could no longer tolerate watching fat people gorge on his gastro-molecular cuisine. An accommodation is seeing that the “now-to-fat-to-walk” can get their wheel chair into the bathroom to obsess over the mirror being 1/2″ too high, cutting off the sight of 1/2″ of their triple chins.

And given no chance to repair the problem, he is hit with a fine for not knowing the nuances of every law that protects fat people from having their feeling hurt. Because, contrary to your solution, the legislatures of most states and congress have a predominance of lawyers, who aren’t about to endanger the livelihood of their brethren.

Possibly giving credence to the title of this blog. Go figure!

15 Allan 06.11.14 at 11:23 am

You were mixing apples and oranges, i.e., the legal proposition that we should not discriminate against the disabled, the question of how we should accommodate disabilities, and the way to enforce the requirement that business make the accommodations.

I submit that everyone agrees that we should not discriminate against the disabled. I further submit that there is a disparity regarding what accommodations are proper. But the real problem is how to enforce the requirement that businesses make accommodations.

It is in the enforcement that private attorneys come into the picture. Please let me know if you can come up with a better system to identify deficiencies and ensure accommodations are made.

As for the accommodations themselves, I don’t know what to do. It seems as though EEO offices are “captive regulators,” with the disable having captured them, much in the way that the telecom industry has captured its regulators.

16 gitarcarver 06.11.14 at 1:17 pm

Allan,

With all due respect, your premise is flawed. Having a mirror not be at a certain height is not discrimination. I have said that before, you seemed to agree and yet are now trotting out the same argument.

Discrimination against the disabled would be not allowing them in the place of business. That is not what is happening here.

Please let me know if you can come up with a better system to identify deficiencies and ensure accommodations are made.

Why not handle these “deficiencies” like any other code enforcement issue? If there is a violation, report the violation to a Code Enforcement division, they notify the business owner who can then address it, fix it and move on.

If the business owner chooses not to correct the situation, there are remedies there as well such as hearings on the issue to dispute whether there actually was a violation, etc and even fines if the owner does not correct the violation.

That system works well in cases where there is a potential for real harm (ie danger to people) so why not have the same system when the infraction does not physically anyone?

17 Bill Poser 06.11.14 at 5:29 pm

The present system presumes that businesses that violate standards for accommodation of disabilities are aware of the violations and deliberately refusing to remedy them. Regardless of what standards we adopt, a fairer and less expensive system would require a business to be put on notice before any action could be taken against it. Someone observing a defect would have to report it to the business or to some suitable agency. Only if the defect had not been repaired after a suitable length of time would it be possible. This would give businesses the opportunity to to make changes or determine that they are not necessary or impractical.

18 Allan 06.12.14 at 11:15 am

Gitarcarver,

1. if the law says having a mirror 1/2 inch too low is discrimination, it is discrimination. It might not meet your definition, but there are a lot of laws that exist which make conclusions I do not agree with.

2. Code enforcement? Make government bigger is your solution. Not a very libertarian solution, IMHO. If businesses do not comply, they might get a citation and they can sue. So, government will have to pay litigation costs. Your taxes will go up.

19 DensityDuck 06.12.14 at 4:52 pm

” if the law says having a mirror 1/2 inch too low is discrimination, it is discrimination.”

So the law is the law and the law is right because the law is right because the law is right?

Nixon never died; he’s posting here under the handle “Allan”.

20 gitarcarver 06.12.14 at 9:02 pm

Allan,

You are the one who said that these violations are “discrimination.” Don’t put your accusations and false assertions on “the law.

(By the way, did you accidentally miss the question of whether your house could meet the same code required for businesses? Or did you deliberately skip that question and in doing so, basically lay claim to the idea that you “discriminate” against people? (based on your definition of “discrimination.)

Secondly, clearly you don’t understand the current system. If a complaint is made concerning non-compliance, the government gets involved on two levels. The first level is adjudicating and collecting any fine assessed by the municipality. In addition the government gets involved in collecting the “bounty” for the reporter of the alleged infraction as well as lawyer fees.

Once the infraction is reported, Code Enforcement still has to verify the infraction. After that, they have to verify that the infraction is fixed.

Compare that to the way every other code issue goes, in handling ADA complaints, the government does more work and has to be larger doing it the way that you like, advocate and believe in.

I believe that people – even business owners – have the right to due process and challenge a violation if they feel they have been wrongly accused. I am not sure why you don’t believe in a system where people can protect their rights and their property.

Despite your claim, handling these violations in a manner similar to that of other code violations would be cheaper, more effective and better off for everyone in the long run.

As the Quacker implied, you are wedded to the law to the point where no dissent is allowed. It doesn’t matter to you whether that allegiance tramples people’s rights. It doesn’t matter whether it harms people and businesses. You want to cling to “the law.”

All hail “the law.”

21 Allan 06.13.14 at 10:32 am

DD and Gitar,
Your characterizations of me are way off base.

As I have stated, there are three questions to be considered: should there be a law prohibiting discrimination against the disabled? if so, how should the law define discrimination? and how should the law be enforced?

My position is that businesses that are open to the public should not discriminate against the disabled. I have not taken a position on what it means to discriminate against the disabled. I have not taken a position on how enforcement should be handled.

I do welcome the arguments, but you seem to be arguing that having mirrors 1/2 inch too low is not discrimination. It is. Because that is what the law provides. I have never stated that, were I drafting the rules, I would make mirrors 1/2 inch to low unlawful. Nor have I stated that I think suing businesses for violating such a law is the right enforcement method.

I wonder. Gitar and DD, do you think that there should be laws prohibiting discrimination against the disabled? I had not thought the question was open to debate, but perhaps it is.

As for enforcement… Many libertarians are against code enforcement in general. Gitar’s solution would simply add another layer of government. I do not disagree with the suggestion of local code enforcement or the suggestion that it might be more efficient.

Finally. My house is not compliant. It would cost me a fortune to have it meet the ADA code (for example, I would need to install an elevator). If society decided that this was unacceptable, I would be in a heap of trouble financially. But it has not…. yet. I would think that, were my goverment considering such laws, I would oppose them.

22 gitarcarver 06.13.14 at 1:13 pm

Allan,

This is hopefully my last response on this.

You have said having a mirror 1/2″ too low is “discrimination.” To quote Inigo Montoya: “You keep using that word. I do not think it means what you think it means.”

Secondly, allowing Code Enforcement to handle ADA complaints would not add another layer to government, it would eliminate a layer. Code Enforcement is already involved on these types of complaints. The layer that gets eliminated is the layer that tracks the bounty and lawyer fees.

Third, the house question and your answer shows that you are not really trying to end “discrimination,” but rather “discrimination” in other places. You have legitimate concerns about costs to you and your home, but have no concerns to the same costs for businesses. The idea that you support a system that adds more bureaucracy and costs to the public, fines businesses who cannot keep up with changing standards, and which is more interested in generating bounties and fees rather than addressing what you claim is “discrimination” on other property rather than your own says to me that while you say that you are against what you claim is “discrimination,” you are only against it in others and when it doesn’t cost you any money directly.

And with that, I am done.

23 Allan 06.13.14 at 1:49 pm

Gitar,

logic does not seem to be one of your strong suits. Your arguments are a combination of muddled thinking and mischaracterization.

My positions are strong and consistents. 1. We should end discrimination by businesses (intentional or historical) against the disabled. 2) there need to be rules establishing what is discrimination. 3) there needs to be enforcement of the rules.

I have said nothing about discrimination by entities that are not open for business to the public. Just as I would not force people to invite white people to their house, when they do not want to, I would not force people to make their houses comply with ADA regulations.

I have part ownership in two businesses, both of which are subject to being accessible to the disabled. I am very sensitive to costs of accessibility. However, that does not change my position that we should not discriminate against the disabled. It also does not change my position that there should be rules and that they should be enforced. What the rules are and how they are enforced should entail a cost-benefit analysis.

By the way, by some definitions, having a mirror 1/2 inch too low or too high IS discrimination. I don’t think I have ever stated that it SHOULD be discrimination.

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