# ADA lawsuit abuse remains a problem



## mark handler (May 25, 2017)

ADA lawsuit abuse remains a problem
http://www.dailynews.com/opinion/20170524/ada-lawsuit-abuse-remains-a-problem

California adopted some reforms last year to curb predatory disability lawsuits but, as evidenced by more proposals at both the state and federal levels, the problem remains.

The Americans with Disabilities Act, adopted in 1990, was enacted to ensure access for the disabled to public accommodations, but too often it has been abused to shake down businesses — particularly smaller businesses which are more inclined to pay off plaintiffs because they lack the means to engage in expensive litigation — for the most minor of violations that do not actually impede access at all.

Businesses can be sued because a bathroom mirror is an inch too high, a sign is missing or the paint on a disabled parking space has become too faded over time. There are numerous examples like the San Ramon gas station owner who was forced to install a shield under a bathroom sink to prevent burns to the legs of someone in a wheelchair — even though the bathroom does not even have hot water.

The problem is exacerbated here in California due to the Unruh Civil Rights Act, which incorporates provisions of the ADA but offers much higher fines — a minimum of $4,000 per infraction, versus $1,000 for the federal ADA — and requires payment of plaintiffs’ legal fees. So it should be no surprise that a cottage industry of ADA hustlers has sprung up in the Golden State, which now accounts for 40 percent of ADA cases nationwide, despite being home to just 12 percent of the country’s disabled population.

Most claims are filed by a small number of serial plaintiffs (and their attorneys) who canvass strip malls and business parks looking for any technical excuse to threaten a business with many thousands of dollars in legal claims. In fact, from 2012 to 2014, 54 percent of all construction-related accessibility complaints in the state were filed by just two law firms, and 14 plaintiffs brought 46 percent of all lawsuits, the California Commission on Disability Access found.

These include people like Robert McCarthy, who does not even live in California, and who has filed more than 400 disability lawsuits against California businesses, including 91 in the past year, the Modesto Bee noted.

Assemblyman Adam Gray, D-Merced, proposed Assembly Bill 913 this year to give the courts more leeway to bar “extremely high-frequency litigants” who file more than 15 disability access lawsuits within a year from proceeding with their claims, but it was shot down by the Assembly Judiciary Committee in late March.

In a positive step last year, California enacted Senate Bill 269 by state Sen. Richard Roth, D-Riverside, which gives small businesses some time to fix certain minor or technical ADA violations, though it was not comprehensive and is not enough, by itself, to put a stop to predatory ADA lawsuits.


At the federal level, Republican Congressmen Jeff Denham of Turlock and Ted Poe of Texas each have bills that would provide businesses with a 120-day period to fix violations before a lawsuit could be filed.

Extortionate disability lawsuits tarnish the legitimate claims of others who genuinely seek redress for inadequate access. It is time to put the focus on fixing problems that actually prevent access rather than lining the pockets of a small number of “professional victims,” as a fact sheet for AB913 described them, and their attorneys.


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## sergoodo (May 27, 2017)

The futile gesture doctrine cannot be controlled...yet


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## kilitact (May 28, 2017)

[QUOTE="At the federal level, Republican Congressmen Jeff Denham of Turlock and Ted Poe of Texas each have bills that would provide businesses with a 120-day period to fix violations before a lawsuit could be filed.

Extortionate disability lawsuits tarnish the legitimate claims of others who genuinely seek redress for inadequate access. It is time to put the focus on fixing problems that actually prevent access rather than lining the pockets of a small number of “professional victims,” as a fact sheet for AB913 described them, and their attorneys.[/QUOTE]

Finally some common sense. It does create job loss though.


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## conarb (May 28, 2017)

Daily News said:
			
		

> At the federal level, Republican Congressmen Jeff Denham of Turlock and Ted Poe of Texas each have bills that would provide businesses with a 120-day period to fix violations before a lawsuit could be filed.
> 
> Extortionate disability lawsuits tarnish the legitimate claims of others who genuinely seek redress for inadequate access. It is time to put the focus on fixing problems that actually prevent access rather than lining the pockets of a small number of “professional victims,” as a fact sheet for AB913 described them, and their attorneys.



Finally some common sense. It does create job loss though.

There, fixed it for you. As a practical matter how hard would it be to remove the private right of enforcement?  Every time I've seen it tried it's ended up bad, several years ago California had a private right of enforcement in their automobile repair regulations, within a few years crooked law firms had people going around to repair shops getting quotes on repairing old clunkers that had been deliberatively damaged, it was so abused that they finally eliminated it, the same should be done here. 

My gripe is the whole concept of "Suspect Classes" where whole groups, races, sexes, etc. are given special privileges, it's egalitarianism designed to destroy our meritocracy.


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## tmurray (May 29, 2017)

Or it's a law that guarantees their constitutional right to pursue life, liberty and happiness.


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## conarb (May 29, 2017)

tmurray said:


> Or it's a law that guarantees their constitutional right to pursue life, liberty and happiness.



Sorry, here in the States we have no rights to pursue life, liberty, and happiness, you are confusing our constitutional rights with our Declaration of Independence, our secessionist screed demanding independence from the Crown, of course you are forgiven for not knowing our history since you've never been liberated from the Crown.


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## tmurray (May 30, 2017)

Sorry, I confused our Charter of Rights and Freedoms with your amendment you posted in another thread, but it was that the state can make no law violating your right to pursue life, liberty and property. My mistake. However, my point still stands.


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## conarb (May 30, 2017)

tmurray said:


> S My mistake. However, my point still stands.



Which is?


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## tmurray (May 30, 2017)

That ADA simply is a guarantee of this right for people with quantifiable impairments.


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## conarb (May 30, 2017)

tmurray said:


> That ADA simply is a guarantee of this right for people with quantifiable impairments.


It grants special privileges to a group of people, in the process it takes away rights from other people. I know several places of business that have had to shut down, one of the most unique Chinatown restaurants was Sam Wo, you had to climb a ladder to enter, at great cost *they have relocated* but the experience is not the same, what we are down to is if everybody can't eat there nobody can eat there, to say nothing of the family that owned the building for over 100 years.


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## tmurray (May 31, 2017)

I'm sorry, but I simply don't see any discrimination against anyone. I don't agree with the retroactivity of ADA, but if you're equating discrimination against the business to the owners of the business, then no law can be created to regulate a business at all.


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## conarb (May 31, 2017)

tmurray said:


> I'm sorry, but I simply don't see any discrimination against anyone. I don't agree with the retroactivity of ADA, but if you're equating discrimination against the business to the owners of the business, then no law can be created to regulate a business at all.


Well I'm discriminated against because I can no-longer go there since it doesn't exist anymore because of ADA, the owners were discriminated against because their new compliant location no-longer has lines waiting to get into the restaurant that you have to climb a stairway so steep that it's virtually a ladder.   

The problem is that this is civil rights law, all civil rights law has been a disaster, our colleges and universities are in disarray because they can no-longer admit students based upon brains but now have to admit on the basis of inclusion and diversity, I won't post it because it's all over the news now with  *Evergreen College in Washington State* being closed down by blacks demanding that whites be banned, this has gone at Harvard where blacks are demanding that all whites commit suicide, white women can remain to have sex with black men to produce a world full of beautiful brown babies, Stanford students are refusing to take the History of Western Civilization because it's the history of white male oppression, they only want to study women's and black history. They've drastically lowered the requirements, a few years ago both Stanford and Harvard had more perfect SATs apply than they had opening slots, in the past a perfect SAT was something less than one in a million, Stanford gives 20 point penalties to Asians, 20 point credits to Latinos, 40 point credits to blacks and 50 point credits to American Indians, how is that not racial discrimination?  The situation has gotten so far out of hand that I think all colleges and universities should be shut down for a period of one year until they can get control of the situation.  This is going on in Canada too, my best buddy from college days spent his career as a mathematics professor at Waterloo University, he retired early because the quality of the students was so low. 

As I see it what's going on is groups like Blacks and the disabled are told that they are inferior by giving them special advantages, so out of an inferiority complex they are rebelling, like disabled in Costco running into people in their motorized carts. 

You don't agree with retroactivity, if we eliminated that Sam Wo would still be there in it's original configuration,  if we dumped retroactivity, political codes like Green, and the private right of action, we could go a long way cleaning up the codes.


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## tmurray (May 31, 2017)

It's not discrimination if no one can go there. 

My personal feelings are that retroactivity of a law violates basic procedural fairness and persecutes a business for violating a law that was not in existence when the structure was constructed. New buildings should certainly be accessible. Renovations to existing buildings should be as accessible as possible. Put the requirements in the code and give inspectors the authority and latitude to make judgment calls. That's the way it works here.


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## conarb (May 31, 2017)

tmurray said:


> It's not discrimination if no one can go there.



That's like saying the patient no-longer has cancer if you let him die, it's destroy it for everybody if everybody can't go there.



> My personal feelings are that retroactivity of a law violates basic procedural fairness and persecutes a business for violating a law that was not in existence when the structure was constructed. New buildings should certainly be accessible. Renovations to existing buildings should be as accessible as possible. Put the requirements in the code and give inspectors the authority and latitude to make judgment calls. That's the way it works here.



We agree, and I've long said you have a much better approach than we do, but your codes are not the International Codes that we seek to impose on the entire world.


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## tmurray (May 31, 2017)

But that's the law and until it's repealed, it must be enforced. I understand your slippery slope analogy, but the minimal design tweaks during construction can allow people access to most buildings and I think that as a society, the risk is worth it.


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## Paul Sweet (May 31, 2017)

Minimal design tweaks during design & construction are not a problem.  Applying 20% of renovation costs to improve accessibility cuts into what other work can be done, but we can live with it.  The problem comes in being forced to spend large amounts of money to reconstruct parts of a building because 1% of the population needs assistance in accessing or using those parts of the building.


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## conarb (May 31, 2017)

Paul Sweet said:


> The problem comes in being forced to spend large amounts of money to reconstruct parts of a building because 1% of the population needs assistance in accessing or using those parts of the building.



Paul:

It's looking like a lot more than1% of the population if you count handicap placards on the street and/or fat people in the stores.


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## Paul Sweet (Jun 1, 2017)

Most disabled people can get in and out of a car parked on a grade that exceeds 2%.  You can get through a door narrower than 32" clear with crutches or a walker, although a 24" door is too narrow for a walker.  The most difficult (and expensive) requirements to meet are written for people in wheelchairs, who are less than 1% of the population. 

Advocates for disability standards lump together people who are blind or legally blind, deaf, have trouble walking far, pregnant women, etc. with people confined to a wheelchair so the can say that 15 - 20% of the population has a disability.


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## conarb (Jun 1, 2017)

Is pregnancy considered a disability?  I wouldn't mind if code made all doors wider, I hate narrow doors and always install a minimum of 2'8" in the homes I have built, I wouldn't mind if they made 3'0" doors mandatory.  I've always disliked 6'8" high doors having had tall friends (I once had an employee who was 6'8" tall, a frequent competitor contractor was also 6'8") who I've seen duck to get through, in the past I always installed 7'0" doors, a few years ago I found the door manufacturers made 8'0" doors the same price as anything over 6'8", so my last few homes had all 8' high doors.  Disability thresholds are no problem for me either since I prefer level-in/level-out doors, curbless showers are nicer too, there are lots of disability requirements that could be incorporated into new construction that actually make buildings nicer for everybody without selecting out a few for special treatment. 

I think where ADA tricked us was the term "reasonable accommodations", when we saw that we all thought everything would be interpreted reasonably, not the tyrannical mess we have.

BTW, the editorial in our local paper was about ADA "professional victims", it's just more of what Mark posts all the time but *if anyone wants to read it it's here*, the public is getting irate about this, as a friend who is wheelchair bound told me: "The curb cuts are nice but the rest of it isn't worth the hatred we get."


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