Are Disability Access Lawsuits Getting Out of Control?

A federal lawsuit filed against a Rosemont skating rink has prompted controversy over disability compliance laws.

Over the past week, , filed by a Rancho Cordova man who says .  The Rink's owners say they were already planning upgrades to provide better access when the case was filed. 

It's not the first lawsuit claiming Rosemont businesses violated disability access laws.  In October, a Carmichael attorney named Scott Johnson sued five local shops, claiming those businesses didn't have

With a bill pending in the California state legislature that would restrict how such lawsuits are filed, disability advocates and legal reform groups are clashing over whether the suits are unnecessarily harmful to businesses.

Under both California and federal law, businesses can be held liable if they didn't provide proper access to disabled customers. Since the 1990 Americans With Disability Act, nearly 30,000 civil lawsuits have been filed for disability access violations.  Businesses in California must pay at least $4,000 per violation if they're found liable under the Unruh Civil Rights Act, a state anti-discrimination law.

Reform advocates say many of these lawsuits threaten the livelihoods of well-meaning California business owners who aren't experts on disability access laws.

"In about the last 10 years, it’s largely been recognized as a growing problem," said David Warren Peters, CEO and general consul for Lawyers Against Lawsuit Abuse.  Peters, an advocate for reforming California's disability access laws, claims the legal system doesn't actually lead to better access and that many businesses still aren't compliant with ADA rules after losing their access lawsuit.

"Using private lawsuits to make the state compliant is really not the answer," said Peters.  "It’s the costliest, most inefficient method I can think of.”

Disagreement over reform

Not surprisingly, disability rights advocates disagree, calling the lawsuits an important tool in fighting discrimination.

"If a business is not accessible, it denies a person with a disability the right to access," said Fred Nisen, an attorney with Disability Rights California.  "Being denied access is the same as being segregated.”

Nisen’s group is currently fighting a bill pending in the California State Legislature that would change how disability access suits are filed.

Passed by the Senate in May, SB1186 would give business owners 30 days notice before they're sued and force commercial landlords to notify tenants whether their property has certified disability access.

Disability Rights California published a statement calling the changes a "substantial infringement on the civil rights of people with disabilities."

Pro-business lobbyists have been lining up to support the legislation. “Under the [current] law, there’s no difference between businesses that are trying to get it right and those that take no effective action whatsoever," said Katherine Pettibone, director of the Civil Justice Association of California, another group dedicated to reducing the number of lawsuits against businesses.

Pettibone said disability access violations are different from other forms of discrimination because building codes are involved and business owners can't make changes overnight.

“I think there’s a world of difference between architectural issues where people don’t know what’s required of them and racism, which is very clear," she said.

Fixing violations

Disability rights advocates point out business owners do have ways to identify and fix violations, reducing or sometimes even preventing lawsuits.

The state's certified access specialists, licensed by the California Commission on Disability Access, can inspect shops for violations and give business owners a checklist of what they need to fix.  The commission's web site also provides resources on how to stay compliant with ADA and state disability laws.

Under a 2006 state law, business owners can reduce legal penalties if an access specialist inspects the building.  Rosemont's skating center had planned to consult an access specialist before the lawsuit was filed, said Alex Johnson, The Rink's co-owner.

But even if business owners hire an access specialist, they can still end up liable in court, said Peters.

“There are a whole bunch of things you could do to make the case go better, but as the law as it stands, you would not be able to avoid the penalty," he said.

Frivolous lawsuits?

Critics of disability access cases often cry foul over what they see as abusive practices by cash-hungry attorneys.

Web sites like adaabuse.com and adacrisis.com keep databases on personal injury lawyers who they say are taking advantage of the system by filing hundreds of cases.

Jason Singleton, the attorney who sued The Rink last month for disability access violations, has filed 241 lawsuits since 1997, according to adacrisis.com. 

Singleton did not respond to Rosemont Patch’s requests for comment.

Peters, who has defended cases filed by Singleton, said it's difficult to say whether a case is frivolous.  Judges don't usually consider whether a person is using the law to shake down business owners, he said.

But Nisen, the attorney for Disability Rights California, thinks it's possible to tell the difference.

“It would probably be a signal that an attorney would not be working in a right way if he targeted just one block or swathe of sidewalk," he said.

Until lawmakers include that definition in future reforms, business owners are stuck between racking up costly legal fees or simply paying a settlement, said Pettibone.

"It's not worth if for a business owner to go to trial," she said.  "You don’t get your attorney fees paid for to win."