# Stockton businesses hit by access lawsuits



## mark handler (Mar 10, 2015)

Stockton businesses hit by access lawsuits

By Reed Fujii

Record Staff Writer

http://www.recordnet.com/article/20150309/NEWS/150309658

Mar. 9, 2015 at 8:00 PM

STOCKTON — A disabled Carmichael man who filed dozens of disability-access lawsuits in the Stockton area late last year apparently remains active, this time targeting businesses on the city’s south side.

Rosalie Teves, owner of the building at 2617 S. El Dorado St. that houses the Wilson & Coffey appliance store, said she and many of the small, independent businesses along the street have been sued.

“He started in French Camp and it seems like he went all the way down South El Dorado Street,” she said. “Just every person I talk to tells me of several (more).”

Jerry Brannon, owner of Brannon Tire and other Stockton businesses, knows of many.

Hit by a Scott Johnson lawsuit last fall, he began seeking other business owners who had been sued with an eye toward building a counter-case against the serial plaintiff.

“We got a list of about 50 people now,” Brannon said.

One reason for the problem, he said, is that Scott Johnson is not alone; there’s a handful of disabled people who make a career of filing suits against businesses that violate the Americans with Disabilities Act, enacted in 1990.

The other is that enforcement of ADA is left up to individual lawsuits and California’s own application allows plaintiffs to collect hefty fees for violations they find.

“They wrote a terrible law and it’s killing small business,” Brannon said of state lawmakers. “I’ve never seen anything so negative and destructive to small business in my life.”

Teves acknowledges that her building falls short of ADA requirements. She is looking into hiring an expert on access issues and is checking on possible insurance coverage.

Brannon said he has put tens of thousands of dollars into disability access improvements at Advanced Trailer, his business being sued by Johnson, but vows not to meet Johnson’s demands.

“I’m trying to tell everybody not to pay this guy a damn dime,” he said.

Kim Stone, president of the Civil Justice Association of California, said it’s better for businesses to become ADA compliant before they are sued.

She recommends finding a Certified Access Specialist — listed on the state website dgs.ca.gov/dsa/Programs/programCert/casp.aspx — and following the professional’s advice.

“Those are specialists regulated by the state architect, certified to be knowledgeable in ADA issues,” Stone said.

The law is pretty strict.

“There is no way to get around it. There ‘s no grandfathering (for historic or older buildings). There are very few exceptions,” she said.

Legislation is pending in Sacramento to change California’s disability access rules, but don’t hold your breath, Stone warned. Her group has sought such reform for a decade.

Unfortunately, because ADA enforcement was left to individual civil lawsuits, many independent businesses remain unaware of the law’s clout until they are sued. And, even after 25 years, it is not widely followed.

Said Stone: “It’s a shame that the way it ends up is a small percentage of the disabled community is making a living as a professional plaintiff and that everyone else (of the disabled) … doesn’t have the access they deserve.”


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## ADAguy (Mar 10, 2015)

I have a case on El Dorado too. It was built in 1982, never upgraded or added too and no existing barriers removed.

No defense, they never did it. Owner said he would have if he knew but isn't that what they all say?

Just like a tail light citation, you fix it and you pay it. It just costs more than a tail light. Not trying to make "light" of the subject but they were caught.


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## Paul Sweet (Mar 11, 2015)

From ADASAD - Title III (Subpart D of 28 CFR Part 36)

§ 36.401 New construction.

(a) General.

(1) Except as provided in paragraphs (b) and © of this section, discrimination for purposes of this part includes a failure to design and construct facilities for first occupancy after January 26, 1993, that are readily accessible to and usable by individuals with disabilities.

§ 36.402 Alterations.

(a) General.

(1) Any alteration to a place of public accommodation or a commercial facility, after January 26, 1992, shall be made so as to ensure that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs.

(2) An alteration is deemed to be undertaken after January 26, 1992, if the physical alteration of the property begins after that date.

(b) Alteration. For the purposes of this part, an alteration is a change to a place of public accommodation or a commercial facility that affects or could affect the usability of the building or facility or any part thereof.

(1) Alterations include, but are not limited to, remodeling, renovation, rehabilitation, reconstruction, historic restoration, changes or rearrangement in structural parts or elements, and changes or rearrangement in the plan configuration of walls and full-height partitions. Normal maintenance, reroofing, painting or wallpapering, asbestos removal, or changes to mechanical and electrical systems are not alterations unless they affect the usability of the building or facility.

IF alterations are made, they are required to be accessible.  I don't see anything REQUIRING alterations to be made for the sole purpose of providing accessibility.  Maybe California law is different.


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## ADAguy (Mar 11, 2015)

PS,

except that ADA requires removal of barriers if done without major expense,

together with an ongoing responsibility to maintain compliance, ie: maintain closer pressure, freshen parking lot lines when faded, etc.


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## jdfruit (Mar 11, 2015)

Here is the "ADA" requirements for private owned buildings and facilities:

From the commentary on the ADA in the Federal Register upon publication:

The title III rule

published in 2010 provided that on or after March 15, 2012, public

accommodations must generally use the 2010 Standards as the benchmark

for their ongoing obligation to remove architectural barriers in

existing facilities to the extent such compliance is readily

achievable. 28 CFR 36.304(d)

And now the actual federal law quoted:

§ 36.304 Removal of barriers.

(a) General. A public accommodation shall remove architectural barriers in existing facilities, including communication barriers that are structural in nature, where such removal is readily achievable, i.e., easily accomplishable and able to be carried out without much difficulty or expense.

(b) Examples. Examples of steps to remove barriers include, but are not limited to, the following actions—

(1) Installing ramps;

(2) Making curb cuts in sidewalks and entrances;

(3) Repositioning shelves;

(4) Rearranging tables, chairs, vending machines, display racks, and other furniture;

(5) Repositioning telephones;

(6) Adding raised markings on elevator control buttons;

(7) Installing flashing alarm lights;

(8) Widening doors;

(9) Installing offset hinges to widen doorways;

(10) Eliminating a turnstile or providing an alternative accessible path;

(11) Installing accessible door hardware;

(12) Installing grab bars in toilet stalls;

(13) Rearranging toilet partitions to increase maneuvering space;

(14) Insulating lavatory pipes under sinks to prevent burns;

(15) Installing a raised toilet seat;

(16) Installing a full-length bathroom mirror;

(17) Repositioning the paper towel dispenser in a bathroom;

(18) Creating designated accessible parking spaces;

(19) Installing an accessible paper cup dispenser at an existing inaccessible water fountain;

(20) Removing high pile, low density carpeting; or

(21) Installing vehicle hand controls.

© Priorities. A public accommodation is urged to take measures to comply with the barrier removal requirements of this section in accordance with the following order of priorities.

(1) First, a public accommodation should take measures to provide access to a place of public accommodation from public sidewalks, parking, or public transportation. These measures include, for example, installing an entrance ramp, widening entrances, and providing accessible parking spaces.

(2) Second, a public accommodation should take measures to provide access to those areas of a place of public accommodation where goods and services are made available to the public. These measures include, for example, adjusting the layout of display racks, rearranging tables, providing Brailled and raised character signage, widening doors, providing visual alarms, and installing ramps.

(3) Third, a public accommodation should take measures to provide access to restroom facilities. These measures include, for example, removal of obstructing furniture or vending machines, widening of doors, installation of ramps, providing accessible signage, widening of toilet stalls, and installation of grab bars.

(4) Fourth, a public accommodation should take any other measures necessary to provide access to the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.


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## MASSDRIVER (Mar 11, 2015)

So lack of ADA compliance is discrimination.  But if it costs too much you can then discriminate.

That's why the idea gets smashed against the anvil of reason.

A manufactured sub group. Name one other segment of people you can apply  this "logic" to.

Brent.


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## mtlogcabin (Mar 11, 2015)

(5) Repositioning telephones; Just remove all of them since everyone has a cell phone

(13) Rearranging toilet partitions to increase maneuvering space; Yep that's an easy one. No problem I will just eliminate a WC until the plans examiner tells you no reduction in fixtures allowed

(14) Insulating lavatory pipes under sinks to prevent burns; Plumbing code requires the water to be less than 120 degrees. Unnecessary requirement.

(16) Installing a full-length bathroom mirror; Remove all mirrors not a code requirement to have one

(17) Repositioning the paper towel dispenser in a bathroom; Remove all paper towel dispensers not a code requirement to have one


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## MASSDRIVER (Mar 11, 2015)

Eliminating the towel dispenser probably violates a health code.

Brent.


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## ICE (Mar 11, 2015)

MASSDRIVER said:
			
		

> Eliminating the towel dispenser probably violates a health code. Brent.


When there's no hand towels I use toilet seat covers.


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## jdfruit (Mar 12, 2015)

The key to the mess in the ADA law is "readily achievable"; for small businesses that don't have a lot of money to invest in removing barriers it may take quite a while to remove barriers, for a large company like chain stores or restaurants they usually have the resources necessary to do the work within months. The list is to help the clueless citizens get a start on figuring out what they should be doing.

If you look into the guidance documents from DOJ, they caution that if you can't do the work in a short time, then have a plan for doing the work over time and keep on schedule.

The concept is being aware and actually doing something about it.


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## ADAguy (Mar 12, 2015)

1. The removals are tax deductable.

2. The isulation is not to retain heat, its to protect the knees and legs of wheelchair users who often can't feel the heat or sharp edges.

3. In most cases the costs to small businesses are minimal < $5000, obviously they may increase based on the order of magnitude of what needs to be done.


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## MASSDRIVER (Mar 12, 2015)

ADAguy said:
			
		

> 2. The isulation is not to retain heat, its to protect the knees and legs of wheelchair users who often can't feel the heat or sharp edges.


You misunderstood mtlogcabin's point.

Brent.


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## mtlogcabin (Mar 13, 2015)

1. The removals are tax deductable. Only if you have the money to do them

2. The isulation is not to retain heat, its to protect the knees and legs of wheelchair users who often can't feel the heat or sharp edges.The padding is more for sharp edges. the hot water heat going down a drain would not burn a baby

3. In most cases the costs to small businesses are minimal < $5000, obviously they may increase based on the order of magnitude of what needs to be done. $5,000 is more than 20% of the profits of most small business making less than 5 million gross

The feds will take profits into consideration for barrier removal. In CA it seems a business profits are not even a factor in the law suits. The attitude is they have had twenty years to comply and they should have known what the law is .

As an Architect every project you design or work on should meet all codes 100% and never receive a plan review correction or comment. 

Do you like to work with building departments that have that type of attitude? I don't think so. My point is, and I know it is mostly a CA problem, some of the really small and newer business owners should be given some slack and educated on what their responsibilities are in how their business serves the disabled within the community. 

http://smallbiztrends.com/2012/12/most-profitable-industries-for-small-business.html

[h=1]Most Profitable Small Businesses By Industry[/h]Dec 31, 2012 by Scott Shane In Research 5


*344* 

Shares
​224

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If you are thinking of starting a small business, you might care about potential profits. While your skills as an entrepreneur and the quality of your business idea certainly influence what you will earn, so does the industry in which you operate. In fact, as figures from business data aggregator Sageworks Inc. show (see chart below), small business profitability varies a lot across industries.

Using its proprietary database of private company financial statements collected from accountants and financial institutions that supply information on their clients, Sageworks’ analysts provided me with a list of the most and least profitable industries in 2011 for businesses with $5 million or less in sales.

As the table below shows, the most profitable industry was “other financial investment activities,” with an average net profit margin of 16.9 percent, while the least profitable was” land subdivision,” with an average net profit margin of -12.4 percent.

While the number of industries is too few to draw any firm conclusions, I think they suggest a pattern. You need a license or a lot of training to enter many of the most profitable industries (e.g., law, medicine, accounting, dentistry, real estate).

Because more people can enter the least profitable industries, competition may be driving down small businesses’ profit margins in those industries.

Keep in mind that net profit margin is just one measure of the attractiveness of an industry to small business.

As I have shown before, the industries with the highest margins don’t have the highest average profit per business. In fact, Internal Revenue Service data show a correlation of only 0.09 between the industry’s average annual income for an S Corp and the industry’s average net income as a percentage of sales for a similarly organized company.

Nevertheless, knowing high and low margin industries is probably useful to people thinking of starting a small business.


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## ICE (Mar 13, 2015)

> The attitude is they have had twenty years to comply and they should have known what the law is.


Not many small businesses have been in operation for twenty years and if they have it hasn't been under the same owner.

There are plenty of laws that affect us all that we aren't aware of.  "Honest injun judge, I had no idea that there's a season for lingcod."


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## ADAguy (Mar 16, 2015)

So how difficult is it to provide a new business owner at the time if application for a business licenses, a list of "to knows & to dos"?

Building depts in CA have available detailed handouts on access requirements, in multiple languages even.

Most smaal business owners do not own their building but their landlords do and often for over 20 years.

They are as much a part of the issue as the tenants who are lead to believe that if the previous tenant had no issues then they won't too.

As to profit, most businesses I have seen require little more than $2500 to cure the barriers.

Surveyed a Frankovitch "victim" Friday, 30 year old name brand 3 story hotel in Ananhiem. Minimal barrier removal "attempted", all listed items were valid.

Why not yet done? Yes, it was a "setup" but they allowed it to happen. If they had not been sued would they have removed the knob hardware to the breakfast room?


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## mtlogcabin (Mar 16, 2015)

> If they had not been sued would they have removed the knob hardware to the breakfast room?


If the person suing does not have a disability that prevented him/her from using a round door knob then they do not have standing and should not be allowed to sue because their civil rights where not violated because they where not denied access because of their disability.


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## jdfruit (Mar 16, 2015)

mtlogcabin said:
			
		

> If the person suing does not have a disability that prevented him/her from using a round door knob then they do not have standing and should not be allowed to sue because their civil rights where not violated because they where not denied access because of their disability.


The "standing" issue has been cussed and discussed at three or more federal circuit courts and then due to marked differences, Congress stepped in circa 2004 & amended the ADA laws effectively stopping the "standing" issue for any particular disability and made all disabled persons have "standing" for ADA architectural standards issues.


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## conarb (Mar 16, 2015)

The $5,000 figure is absurd, an example is that 12 years ago a large Aaron Green (FLW associate) Catholic church decided to voluntarily make their two main restrooms ADA compliant, there were several parishioners who were contractors who volunteered to do the work at cost but their insurance companies would not give them the certificates of insurance required by the archdiocese. Out of frustration one of the board members lived near a home I was building and he asked me if I could do the work providing the requisite insurance coverage.  I presented it to my insurance broker, I had to employ a large architectural firm to do the design work, a firm who's errors and omissions carrier would add both me and the church as additionally insured and actually name both of us to their policy.  Once this was all settled I presented all the paperwork to the church along with my proposal, the archdiocese's legal department questioned my hold harmless and indemnification clause, I ended up submitting it to my attorney, he and an attorney of the archdiocese argued for 10 days over one word in the hold harmless/indemnification clause, their reasoning being that there are so much litigation over ADA projects.  The reality is that if after completion some litigant brings an action against the church for failure to comply, instead of the church cross-complaining against me the church can cross-complain against both me and the architectural firm, my insurance company can force the architectural firm's carrier to hold me harmless and indemnify me from any damages suffered by the church.

Had this been a multimillion dollar new church or a major remodel of the church where ADA work was incidental to the work performed this would not have been the case, but with a little $60,000 ADA compliance job the risks are not worth the rewards for the insurance companies.  Also, had the church employed the architect there would have been no way I could have obtained the insurance to do the work, to comply with the chain of liability I had to employ the architect and make him the ultimately liable party.  In the past it was routine for architects to give me certificates of insurance, now several architect's insurers will not give contractors certificates and naming the contractors on their policies as additionally insured, so it is impossible to obtain small low-cost contractors and/or small low-cost architects to perform ADA work, the $5,000 quoted above would not have even covered the legal fees required for ADA compliance construction in this case. What are small businesses supposed to do, hire unbondable uninsured architects and contractors to comply?


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## jdfruit (Mar 17, 2015)

conarb

The vast majority of work for small access related projects are done by small contractors and handymen without any E&O insurance.


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## ADAguy (Mar 17, 2015)

Conarb, yours is a dissimilar example of those being sued.

Jim, thank you, you are on point with your response. Some is also done by in-house staff.


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## conarb (Mar 17, 2015)

jdfruit said:
			
		

> conarbThe vast majority of work for small access related projects are done by small contractors and handymen without any E&O insurance.


jdfruit:

First, architects have E&O, contractors have liability insurance; second, are you recommending that owners slapped by ADA lawsuits cure the problems by hiring "small contractors and handymen without any E&O insurance"?  Unbelievably California does not require contractors to carry general liability insurance but many states do, about 15 years ago I did some legal work with Counsel to the state License Board, I asked when California was going to require insurance and she said that several carriers threatened to completely pull out of the state fearing getting hit with an assigned risk pool like they have with automobile insurance.

JFYI, when I do expert witness work my contractors' liability insurance doesn't cover me so I have to buy E&O, that is always a different carrier and the last I bought cost $70,000 for a year's policy, and this on top of $82,000 for my General Liability.


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## jdfruit (Mar 17, 2015)

Not recommending anything, just stating what I have observed from many hundreds of small access corrective work projects over the years.


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