# ADA lawsuit relief on hold in Congress



## mark handler (Jun 8, 2014)

ADA lawsuit relief on hold in Congress

Dennis Wyatt

dwyatt@mantecabulletin.com

209-249-3519

May 20, 2014

Congressional relief to stop serial drive-by American with Disabilities Act litigators from preying on businesses such as the 21 so far slapped with lawsuits in Manteca isn’t coming any time soon.

City Manager Karen McLaughlin on Monday turned to Manteca’s lobbyists in the nation’s capitol, VanSoyc & Associates, to see if any legislative remedies were in the works.

McLaughlin said the city is concerned about the spat of lawsuits being slapped against Manteca businesses over ADA issues. So far, the city has scheduled a free workshop Wednesday from 10 to 11 a.m. to educate commercial property owners and merchants about ADA issues and how they could possibly avoid being sued by serial litigators that collect an average of $45,000 per lawsuit based on research by a San Diego law firm. That is on top of the cost to fix alleged ADA violations.

“The city isn’t exempt from ADA lawsuits or possible penalties,” McLaughlin noted.

The city in recent years has spent well over $1.5 million making ADA upgrades on everything from sidewalk curb cuts at intersections and push button doors at the library and elsewhere to a new wheelchair lift at the Lincoln Pool as well as remodeling of the council chambers to make it handicapped accessible to the latest standards.

“We want to avoid that from happening because if we get sued its taxpayer money that is at risk,” McLaughlin said.

Two bills to address the issue submitted by two different Southern California congressmen — Kevin Calvert and Duncan Hunter — have been waiting for consideration in committee for over a year.

Congressman Jeff Denham, R-Turlock, has signed on as a co-sponsor of both bills.

Unlike the State of California’s relief legislation signed into law by Gov. Jerry Brown in 2012, the two congressional bills would actually help businesses avoid lawsuits.

Both bills would give a business receiving a demand letter for being out of complaint with ADA requirements time to fix the deficiencies to avoid fines at the merchant or property owner’s expense. That luxury is not being given to the 21 Manteca businesses nor the roughly 1,000 California businesses slapped with such suits each year. Scott Johnson, the Carmichael lawyer behind the Manteca ADA lawsuits, has filed more than 3,000 such lawsuits.

The state relief legislation:

• requires attorneys to send a notice letter listing any alleged construction-related violations at least 30 days before filing a lawsuit;

• reduces damages against business owners who correct alleged violations within 30 to 60 days of receiving a complaint; and

• requires landlords to disclose whether their buildings or properties are state certified and in compliance with ADA laws.

Unlike the proposed federal laws, the state legislation doesn’t keep merchants off the hook for punitive damages even if they correct the non-complaint ADA issues.

Several merchants have indicated they plan to approach the City Council about the issue to enlist their support to get legislation in place on the federal level to give businesses a chance to comply without being slapped with punitive damages that could cost a business such as Manteca’s The Hair Company $68,000 in addition to the actual cost of making upgraded ADA improvements.

The City of Manteca Building Safety Division and Manteca Chamber of Commerce have teamed up to stage a free workshop dubbed “ADA Basics for Businesses” on Wednesday, May 21, from 10 to 11 a.m. in the council chambers at the Manteca Civic Center, 1001 W. Center St.

The workshop is designed for business owners, commercial property owners, real estate professionals, contractors design professionals, commercial business employees and other interested parties.

http://www.mantecabulletin.com/section/1/article/106144/


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## mark handler (Jun 8, 2014)

The current Congress reached a level of dysfunction, deny the other party anything, even if it is what is good for the country, which ends up being bad for all.


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## ICE (Jun 8, 2014)

> how they could possibly avoid being sued by serial litigators that collect an average of $45,000 per lawsuit based on research by a San Diego law firm.


I didn't know that the insult of encountering a barrier was worth that much.  What am I saying...it's not _worth_ anywhere near that amount.  The fact that they can extort that much is just one more strange thing that our government has wrought upon us.



> The city in recent years has spent well over $1.5 million making ADA upgrades on everything from sidewalk curb cuts at intersections and push button doors at the library and elsewhere to a new wheelchair lift at the Lincoln Pool as well as remodeling of the council chambers to make it handicapped accessible to the latest standards.“We want to avoid that from happening because if we get sued its taxpayer money that is at risk,” McLaughlin said.


ADA upgrades are not done for an altruistic reason.  The upgrades are done out of fear.  And that's from an entity that has no respect for the dollars that they get for free.



> The state relief legislation:• requires attorneys to send a notice letter listing any alleged construction-related violations at least 30 days before filing a lawsuit;
> 
> *The insult of a barrier has already occurred.  What is the purpose of the delay?  Will the business owner now have the time to drain their bank accounts and flee to Arizona?*
> 
> ...


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## ADAguy (Jun 9, 2014)

ICE, "Awareness" is the name of the game. Make people "aware" on an annual basis with their business license renewals and require proof of access when licenses are issued and it can become a non-issue. Cites can legally set requirements for licences and collect fees for enforcement so why not do so?


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## MASSDRIVER (Jun 10, 2014)

ADAguy said:
			
		

> ICE, and *collect fees* for enforcement so why not do so?


Here we are in a powerful recession, unemployment around 25% in real terms among those employable, businesses of every sort failing daily for lack of income, fees and regulations increasing from every angle and agency, less than zero economic growth, inflation on the rise...and the answer is more taxes to pay for enforcement?

The big picture seems elusive. If at some point the business environment does not improve, if all levels of government continue to to hinder the ability of  small business to flourish, there WILL come a time when there will be no funds available for ANY improvement of accessibility on existing structures.

Charging more is not the answer to anything.

Brent.


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## ICE (Jun 10, 2014)

> The U.S. Census Bureau released “Household Economic Studies” on the status of people with disabilities in July 2012.  Information was collected from May through August 2010 as part of the regular Survey of Income and Program Participation.Among the highlights of this report:
> 
> About 3.6 million people (1.5 percent) used a wheelchair


That should raise serious questions.


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## mtlogcabin (Jun 10, 2014)

ICE said:
			
		

> That should raise serious questions.


Why??????????


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## mtlogcabin (Jun 10, 2014)

CA's laws allowing demand letters to be sent such as these deprive the disabled community as a whole "the respect it needs to secure public support. That is particularly true if, as social science suggests, people generally follow the law if they respect it, not because they fear it"


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## mark handler (Jun 10, 2014)

mtlogcabin said:
			
		

> CA's laws allowing demand letters


ADA shakedown letters called illegal

Jason Campbell

jcampbell@mantecabulletin.com

209-249-3544

June 8, 2014

Manteca’s small business owners are scared.

At least two dozen have been named in lawsuits by Carmichael-based serial litigator Scott Johnson for not complying with the Americans with Disabilities Act, and the rest are worried that they’ll soon be next – subjected to letters telling them that they can either pay a set amount of money up front punitively to make the lawsuit go away or make the necessary repairs.

But when dozens of people packed into The Emory on Friday they learned something that they didn’t already know – those shakedown letters are technically illegal. That, however, has prevented the Carmichael-based attorney from prevailing in many of the 3,000 plus lawsuits he has filed contending his civil rights are violated.

In what has been described by some as legalized extortion, letters that solicit money in lieu of making the necessary ADA-compliant repairs or overhauls – which Johnson distributes in the communities that he visits – are technically against the law.

Not only does paying the punitive amount not prevent future litigation, but according to a consultant contracted through the City of Manteca and local cabinet maker John Perez, they set a terrible precedent in a fight against what has become a gold mine for unscrupulous lawyers that business folks are worries are just trying to cash in.

“We’ve got a good turnout, and it’s something that’s important and affects all of us,” said Perez, who has kept his cabinet shop closed out of fear since the notices started appearing. “We need to know these things and I think that sessions like this help us figure those out.”

There were other items that few of the business owners knew prior to walking into that room on Friday as well.

You know that “no public restrooms” sign in the window of the business you just walked into?

Technically, it’s nothing more than a decoration.

According to the consultant, any business with fixtures has to provide a bathroom – an ADA-compliant one if they’re smart – to customers that request to use the facilities. Telling customers that they’re only for employees, she said, is technically illegal and can open up business owners for litigation.

Last month the City of Manteca hosted a similar session that packed the council chambers – which were recently overhauled to comply with the law – full of small-business and building owners worried that a flurry of local lawsuits and proposed shakedown letters would leave them financially devastated.

One business owner was so afraid that he’d open himself up for litigation that he asked for neither his business nor the situation that he’s facing to be named in the newspaper.

“I just don’t want to have somebody show up one day,” he said. “Nobody wants that.”

http://www.mantecabulletin.com/section/1/article/107702/


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## conarb (Jun 10, 2014)

Mark said:
			
		

> You know that “no public restrooms” sign in the window of the business you just walked into?Technically, it’s nothing more than a decoration.
> 
> According to the consultant, any business with fixtures has to provide a  bathroom – an ADA-compliant one if they’re smart – to customers that  request to use the facilities. Telling customers that they’re only for  employees, she said, is technically illegal and can open up business  owners for litigation.


Is that true?  I thought the need for public rest rooms was triggered by the occupancy load.


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## mark handler (Jun 10, 2014)

conarb said:
			
		

> Is that true?  I thought the need for public rest rooms was triggered by the occupancy load.


The CA plumbing code Requires Restrooms for employees *AND Customers*


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## conarb (Jun 10, 2014)

mark handler said:
			
		

> The CA plumbing code Requires Restrooms for employees *AND Customers*


Mark:

Is that something recent?  As I recall there was an occupancy load trigger, we have many commercial facilities around here with "No Public Restrooms" signs on the doors, even Casper's Hot Dogs, a firm that assiduously instructs their employees on ADA, including instructing them to never question anyone with an animal, if the customer says the words "It's a service animal" they are instructed to go no further even if it's a pit bull or a tea cup poodle in a woman's purse.


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## mark handler (Jun 10, 2014)

conarb said:
			
		

> Mark:Is that something recent?  As I recall there was an occupancy load trigger, we have many commercial facilities around here with "No Public Restrooms" signs on the doors, even Casper's Hot Dogs, a firm that assiduously instructs their employees on ADA, including instructing them to never question anyone with an animal, if the customer says the words "It's a service animal" they are instructed to go no further even if it's a pit bull or a tea cup poodle in a woman's purse.


Been around in CA for quite awhile, will need to do research to find out when it went into effect.Unlike ADA it is a grandfather clause thing.

ADA- no grandfather clause

Plumbing code - based on when built or when modified


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## conarb (Jun 10, 2014)

mark handler said:
			
		

> Been around in CA for quite awhile, will need to do research to find out when it went into effect.Unlike ADA it is a grandfather clause thing.ADA- no grandfather clause
> 
> Plumbing code - based on when built or when modified


Mark:

I've never run into it professionally since everything I've ever built has had restrooms.  What I did find out in the 60s (from an owner) was that women's restrooms are much harder to maintain than men's since women tend to "squat" over toilets and pee on the floor, something that I have seen recently is women using the men's room since they are usually cleaner.  Is there still a trigger for allowing unisex restrooms?  With California's new transgender law allowing transgender people to use either rest room they might just as well take gender off the room placards.


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## steveray (Jun 10, 2014)

Boy it's hot....and why am I in this handbasket????.......The real sad state of affairs here is: "turned to Manteca’s lobbyists in the nation’s capitol, VanSoyc & Associates," CA cities have their own lobbyists? Maybe that is why the taxes are so high.....


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## conarb (Jun 10, 2014)

steveray said:
			
		

> Boy it's hot....and why am I in this handbasket????.......The real sad state of affairs here is: "turned to Manteca’s lobbyists in the nation’s capitol, VanSoyc & Associates," CA cities have their own lobbyists? Maybe that is why the taxes are so high.....


Any group that employ's activist group tactics is obnoxious, the most obnoxious of all are the bicycle activists, so far as being hot *they've solved that problem*, of course they look worse in their spandex.


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## ADAguy (Jun 10, 2014)

MH, please provide the cite. This may open a whole new area for drivebys, ouch!

Along with that, what defines a business as accessible to the public? retail only or manufacturers too? What of manufacturing business parks?


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## mtlogcabin (Jun 10, 2014)

IBC

[P] 2902.3 Employee and public toilet facilities.

Customers, patrons and visitors shall be provided with public toilet facilities in structures and tenant spaces intended for public utilization. The number of plumbing fixtures located within the required toilet facilities shall be provided in accordance with Section 2902.1 for all users. Employees shall be provided with toilet facilities in all occupancies. Employee toilet facilities shall either be separate or combined employee and public toilet facilities.

Unless CA amended this portion of the building that is where the requirement comes from. Now define customer, patron pretty easy, but is a visitor someone who just walks in off the street and uses your facility in a lawyers office?


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## mark handler (Jun 10, 2014)

CA plumbing code is similar but based on the UPC not the IPC


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## mtlogcabin (Jun 10, 2014)

I know that is why I quoted the IBC. I could not find specific language in the UPC except maybe the definitions between public and private but no specific requirement to provide public restrooms for the general public is mentioned except mercantile and business occupancies.


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## mark handler (Jun 11, 2014)

mtlogcabin said:
			
		

> I know that is why I quoted the IBC. I could not find specific language in the UPC except maybe the definitions between public and private but no specific requirement to provide public restrooms for the general public is mentioned except mercantile and business occupancies.


CPC 2013 422.4 Toilet Facilities Serving Employees and Customers.

*Each building or structure shall be provided with toilet facilities*

*for employees and customers.*


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## mark handler (Jun 11, 2014)

It is cheaper to violate the plumbing code than the ADA

It the restrooms do not comply, don't let any customers use them, any customers, no exceptions.


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## ADAguy (Jun 11, 2014)

And those definitions would be?

Does ADA distinguish between mercantile/business and those non-retail/manufacturing types which are not commonly, but may be occasionally visited by a salesman, as to provision of public restrooms or is it based on the "if provided" vs "shall/will provide" basis?


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## mark handler (Jun 11, 2014)

ADAguy said:
			
		

> And those definitions would be? Does ADA distinguish between mercantile/business and those non-retail/manufacturing types which are not commonly, but may be occasionally visited by a salesman, as to provision of public restrooms or is it based on the "if provided" vs "shall/will provide" basis?


Don't quite know what you are going for, but,  read the scoping docs for the ADA, especially for buildings built prior to 1992


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## ADAguy (Jun 11, 2014)

Docs lack clarity, what of a business not customarily seen as walkup retail (cabinet shop, sheet metal, cement plant, brickyard, plating shop, etc.), though its lobby might be accessible, must it also provide accessible RR's for walk-ins, or employee only ok?


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## mark handler (Jun 11, 2014)

ADAguy said:
			
		

> Docs lack clarity, what of a business not customarily seen as walkup retail (cabinet shop, sheet metal, cement plant, brickyard, plating shop, etc.), though its lobby might be accessible, must it also provide accessible RR's for walk-ins, or employee only ok?


Under current code, CPC; yes, restrooms required for customers and employees.

Regarding ADA; yes, restrooms required for customers and employees.

BUT it depends. When was the facility built/modified? Is it feasible to do the modifications? Is there a hardship?

In my opinion, the business owner is taking a risk by not modifying the facility. Is there a nexus for a building department/official requiring an accessible restroom with no modifications/alterations NO

A building Official DOES NOT HAVE THAT AUTHORITY.

Can a disabled person sue, yes.


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## ADAguy (Jun 11, 2014)

Comments on point, thank you.

Building built pre-ADA, owner has a ongoing duty to remove existing barriers subject to structural, space and cost limitations spelled out in the ADA and to maintain where necessary, those items requiring periodic adjustment (closer pressure) or refreshing (paint stripes), etc.

The longer they delay, the greater the risk of a complaint/suit occurring, especially with CA law now requiring disclosure as to whether a CASp survey has been performed or not.

There remains the misunderstood belief that if buildings are old (pre-ADA) and no work has been performed that they are grandfathered.


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## conarb (Jun 11, 2014)

ADAGuy said:
			
		

> The longer they delay, the greater the risk of a complaint/suit  occurring, especially with CA law now requiring disclosure as to whether  a CASp survey has been performed or not.


Who's going to pay for all of this?  We are fast devolving into a tyranny, we are now arming our cities with *military assault equipment*, we are becoming such an overregulated society that maybe it is time for a revolution.  Cities are going bankrupt because of the government benefits, interesting *look at Detroit*, public employees are hated, I can't tell you how many customers I've had ask me to not get a permit, when I say I have to one said: "I don't want any government employes poking around my property", this was a gated estate I built in the 70s and he was having me update it.


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## mark handler (Jun 11, 2014)

ADAguy said:
			
		

> Comments on point, thank you.Building built pre-ADA, owner has a ongoing duty to remove existing barriers subject to structural, space and cost limitations spelled out in the ADA and to maintain where necessary, those items requiring periodic adjustment (closer pressure) or refreshing (paint stripes), etc.
> 
> The longer they delay, the greater the risk of a complaint/suit occurring, especially with CA law now requiring disclosure as to whether a CASp survey has been performed or not.
> 
> There remains the misunderstood belief that if buildings are old (pre-ADA) and no work has been performed that they are grandfathered.


Can a disabled person sue, yes.

Do I have the authority to force a property owner with no construction activity/permits to modify the building, NO


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## ADAguy (Jun 12, 2014)

Update you say? As in finishes and other decorative elements only?


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## mark handler (Jun 12, 2014)

ADAguy said:
			
		

> Update you say? As in finishes and other decorative elements only?


Those items don't require a permit. No permit, no authority.


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