California’s unique Unruh Act provides automatic bounty entitlements (often $4,000, plus attorney’s fees) to successful discrimination complainants without having to show any actual injury from their treatment. For many years this has led to a distinctive cottage industry of ADA filing mills that mass-generate accessibility complaints against California businesses to settle for cash, often based on minor instances of noncompliance in facilities open to the public. Correcting the bad incentives created by the Unruh Act appears to be politically out of bounds, but now, at least, following a multi-year push from the business community, Gov. Jerry Brown has signed SB 269, which lays out two escape paths from liability for smaller businesses: by hiring a Certified Access Specialist (CASp) they can get 120 days to fix any violations, and by providing a 15-day grace period before legal penalty for small business to fix the most minor violations, typically involving signage and surface display. [KXTV, NorCal Record, L.A. Daily News] “The number one complaint [in 2015]? Non-compliant loading zones. Number two? Problems with parking lot signage.” [Capital Public Radio]
Meanwhile, in Fresno, some disabled plaintiffs are now suing the lawyers who solicited their involvement in mass ADA filings, saying they broke promises, behaved deceptively, and kept nearly all the proceeds for themselves. [KFSN]:
One of the places the Moores sued is a donut shop in Reedley and one of the problems was with the signage.
The shop had a disabled parking only sign up, but it didn’t have the half that states “Minimum Fine $250” and without that part, this is a violation.
What the Moores may not have known is Doughnuts To Go is managed by Lee Ky, who suffers from cerebral palsy.
“Here I am all my life in a wheelchair and I get around in the community just fine,” Ky explained.
Ky says she never had any accessibility problems at her own store, but she made some updates after she was sued for violations and settled with the Moore Law Firm to make the lawsuit go away.
So when an Action News reporter showed her the video of Ronald Moore, the man who sued her, lifting his wheelchair into his SUV, then walking up to the driver’s seat, she was pretty upset.
“I wish I could be him sometimes,” Ky said. “I wish I could just get up and then walking and all the sudden becoming in the wheelchair. It looks bad.”
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I have long contended that ADA violations for structural deficiencies should be handled like building code violations, with a compliance ticket. “Your handicapped ramp is too steep. Fix it.”
Except that could lead to more abuse of the law:
Using the example of the ramp above, imagine if you had put in a (then-) ADA- compliant ramp four years earlier (under threat of fines), only to find the ADA standards had changed two years later–when you get sued again to force compliance under the “current” standards, which forces you to rebuild/modify the ramp….then the ADA standards change again in three more years, requiring something else to get modified/changed (again under threat of more lawsuits / fines), and so on.
Should there be limits on something like that, so the business or public building can break that cycle of build/get sued (ticketed)/fix/get sued later/etc.?
If something is built according to standards at the time, that should make the property owner safe even if the rules change.
So if you do build that ramp 4 years ago only to have the standards change two years down the road, the building code would recognize this as a “legal, non-conforming” ramp.
Taken to a more extreme example, imagine you build your dream home with side and front setbacks that are within the law. A few years later, the setbacks are increased resulting in your home being across the new setback lines.
You don’t have to tear down the home and rebuild it so why should the ramp have to be torn down and rebuilt?
Most jurisdictions in which I have lived say you don’t have to bring the non-conforming structure into compliance until you go to replace a certain percentage of the structure itself. So if the code states that a 50% refurbishment is considered “new,” when you replace 50% of the structure, you have to bring it into compliance with the new codes.
There is nothing that could or should prevent the ADA as a building code being applied in a similar manner.
“Meanwhile, in Fresno, some disabled plaintiffs are now suing the lawyers who solicited their involvement in mass ADA filings, saying they broke promises, behaved deceptively, and kept nearly all the proceeds for themselves.”
That happens when you shake the devil’s hand.
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