# Attorney Couple Defends ADA Lawsuits as Civil Rights Push



## mark handler (Jan 25, 2015)

Attorney Couple Defends ADA Lawsuits as Civil Rights Push

By Jennifer Wadsworth

http://www.mantecabulletin.com/section/1/article/119976/

or his first seven weeks of life, Jerome Souza squirmed and screamed and sucked in vigorous lungs-full of air. A beautiful baby, hearty and hale, the doctor told his father, Eddie Souza.

But around two months old, Jerome—his parents call him “Jerry”—contracted a fever that hovered around 106 degrees. He began stiffening up with seizures. Doctors blamed toxins from a faulty batch of booster shots, which they said forever damaged his brain. “Chemical insult to the brain,” they called it. Jerry lost mobility, confining him to a wheelchair for life.

The Souzas got a court settlement and structured their lives around their only child’s every need. In 1976, the year of Jerry’s birth, Souza and his wife co-founded Parents Helping Parents, a peer support group for families of disabled children. The nonprofit still runs strong; it helped more than 4,800 families this past year alone. As mayor of Santa Clara from 1985 to 1994, Everett “Eddie” Souza, 71, held fundraisers for groups that helped the disabled and raised their profile in the community.

“My whole life I’ve fought for the handicapped,” he says.

When Souza built his Santa Clara home, he designed it with Jerry’s wheelchair in mind. Single story, wide hallways and double doors, bathrooms with handrails and ramps. On an oaken eave over the front, wooden letters welcome visitors to “Jerry’s Place.”

“People were calling this ‘the mayor’s mansion’ when this was being built,” says Souza, who still looks after his 39-year-old son. “I was telling them, ‘No, this is Jerry’s place.’ I finally put the sign up to let them all know whose house this really is.”

But in a lawsuit filed last month, a crusading husband-and-wife legal team have accused Souza of “waging a war against the disabled.” Six years ago, Souza inherited an aging strip mall just blocks from his home. Randy and Tanya Moore, and a wheelchair-bound client, Cecil Shaw, allege the property and its businesses fail to comply with the federal Americans with Disabilities Act (ADA). In an unusual twist, both Souza and the Moores bill themselves as champions of the disabled.

“I decided to take a stand,” says Randy Moore, elected vice chairman of the Democratic Party’s State Disabilities Caucus, and one half of San Jose-based Moore Law Firm. “I made the determination to make a difference. I wanted to see disabled war veterans not be treated as second-class citizens. I wanted to see greedy businesses taken to task for violating ADA requirements.”

His wife, Tanya Moore, who declined an interview request, became expertly acquainted with disability access laws during her time as a city of Santa Clara attorney. She’s since come full circle in a recent spate of lawsuits targeting small businesses in Santa Clara and, in this case, the city’s former mayor, Souza, who has his own colorful past.

Moore’s husband, a successful trial lawyer who opened his practice in 1993, says he made ADA cases his specialty after his brother lost mobility in a motorcycle crash. Together, they hew to the notion that fighting for the disabled means filing as many lawsuits against non-compliant businesses as possible.

In the 25 years since ADA became law of the land, millions of dollars have gone to settlements, a phenomenon widely reported and intensely debated. People with disabilities simply want access to shops and restaurants, while companies hit with lawsuits—almost always by serial litigants demanding hefty sums of cash—call it a legalized shakedown. But a large number of small businesses have not complied, remaining open targets for what they call “drive-by litigation.”

California is home to 12 percent of the country’s disabled population but 40 percent of ADA lawsuits. That’s due to a related law that sets damages at $4,000 per violation, making California a gold mine for ADA claims.

When President George H.W. Bush signed the ADA into law, congressional leaders wanted the benefits of regulation without the responsibility of paying for it. So they relegated enforcement to private sector trial lawyers. In 2006, the U.S. Ninth Circuit Court of Appeals admitted in a ruling that it “may indeed be necessary and desirable for committed individuals to bring serial litigation advancing the time when public accommodations will be compliant with the ADA.”

But critics call private enforcement a phenomenal public policy failure, paving the way for “legalized extortion” and “ransom” that, according to the California Justice Alliance, has targeted 35,000 businesses across the state. Groups pushing for reform in Sacramento want to see businesses given a chance to remedy the violations before being sued. In 2012, a widely touted ADA reform law nixed the requirement for attorneys to send pre-litigation demand letters, making it easier and faster to file a lawsuit.

The Moores say they’re simply upholding the spirit of the law and the real issue is continued non-compliance.

“The real problem here is that, more than 20 years later, businesses, for whatever reason, have failed to comply,” Moore says. “Then, once they get caught, they bitch about it. They don’t want to be told what to do, even when it comes to making things accessible.”

Shaw, one of the Moores’ regular clients, files close to 20 lawsuits a month, making, according to the law firm, about $500 a settlement (or $10,000 a month). Virtually every single case gets settled. Moore says his firm works with somewhere around 150 such clients, filing as many lawsuits as possible against as many businesses as possible. He portrays himself as a civil rights champion—not an opportunist gaming the system.

“I’m not a bottomfeeder,” he says. “I like money—I want all the money I can get. I have no problem saying that. But I could make much more money doing something else and I don’t make nearly as much as these goddamn defense lawyers or as much as the lobbyists who defend businesses in violation.”

“It’s not hard to find a violation,” Moore admits, telling me that I’ve “probably been fed a bunch of bull****, a bunch of propaganda” about how he makes false claims and defendants in ADA cases are the victims. “You know what? They’re all guilty of violating the law. They should be ashamed.”

In his lawsuit against Souza’s tan flagstone shopping center in Santa Clara, Shaw, who gets around by wheelchair, says he had trouble finding handicap parking because the blue-and-white paint marking was so faded. He says a ramp leading up to the entrance was improperly configured and inside one of the shops, namely Cute Flowers and Gifts, he saw the aisles were so narrow he would knock things over. His wife had to hand him items so he could make a selection, according to the lawsuit. The barriers, he claims, were “so obvious” that they imply discriminatory intent.

“I wish somebody had told me, I would have just painted the parking spot,” Souza says while touring the store Shaw scouted for violations. “I would have painted this in a heartbeat. All the time, I’m thinking about handicap accessibility. I think, ‘Would my son be able to access this place?’”

Though he inherited some of the land his family acquired generations ago, Souza says he has lived most of his life at or below the poverty line, partly because of medical costs to care for his son. Moore contends that the people he sues are millionaires who can afford to become compliant.

“We’re struggling,” Souza says, pointing to vacant storefronts and cracked asphalt on his corner property. “I don’t go crying about it. I’m not asking anybody for any help. I just want to be left alone so I can take care of my family.”


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## ICE (Jan 25, 2015)

> he had trouble finding handicap parking because the blue-and-white paint marking was so faded


He couldn't find the empty parking space that's right in front of the door and has a sign at the head of the stall?  





> He says a ramp leading up to the entrance was improperly configured


 Apparently he made it up that ramp.



> and inside one of the shops, namely Cute Flowers and Gifts, he saw the aisles were so narrow he would knock things over. His wife had to hand him items so he could make a selection, according to the lawsuit.


 And that's worth four grand?



> The barriers, he claims, were “so obvious” that they imply discriminatory intent.


The intent of the lawsuits is so obvious that they scream extortion.


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## conarb (Jan 25, 2015)

> Moore contends that the people he sues are millionaires who can afford to become compliant.


But Tiger, we all know that all small business owners are millionaires, well able to afford this together with attorneys fees.



> Shaw, one of the Moores’ regular clients, files close to 20 lawsuits a month, making, according to the law firm, about $500 a settlement (or $10,000 a month). Virtually every single case gets settled. Moore says his firm works with somewhere around 150 such clients, filing as many lawsuits as possible against as many businesses as possible.


Do you suppose that small gift shop makes $10,000 a month?


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## mjesse (Jan 26, 2015)

mark handler said:
			
		

> “I’m not a bottomfeeder,” he says. “I like money—I want all the money I can get. I have no problem saying that. But I could make much more money doing something else and I don’t make nearly as much as these goddamn defense lawyers or as much as the lobbyists who defend businesses in violation.”“It’s not hard to find a violation,” Moore admits, telling me that I’ve “probably been fed a bunch of bull****, a bunch of propaganda” about how he makes false claims and defendants in ADA cases are the victims. “You know what? They’re all guilty of violating the law. They should be ashamed.”


Sounds like a real swell guy


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## mark handler (Jan 26, 2015)

As  I have stated several times before I am not in favor of lawsuits as a means of compliance. I am even less in favor of the "real swell guy"(s) that use this method. I have been involved with several lawsuits helping the business owners, not one testifying for the "real swell guy"s.

But without the treat of a lawsuit we will have zero compliance.


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## mtlogcabin (Jan 26, 2015)

> Six years ago, Souza inherited an aging strip mall just blocks from his home


 So this owner has not had "twenty years" to comply



> Though he inherited some of the land his family acquired generations ago, Souza says he has lived most of his life at or below the poverty line, partly because of medical costs to care for his son.





> I wanted to see greedy businesses taken to task for violating ADA requirements.”


Maybe the greedy lawyer will drop the suit


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## MASSDRIVER (Jan 26, 2015)

mark handler said:
			
		

> As  I have stated several times before I am not in favor of lawsuits as a means of compliance. I am even less in favor of the "real swell guy"(s) that use this method. I have been involved with several lawsuits helping the business owners, not one testifying for the "real swell guy"s.But without the treat of a lawsuit we will have zero compliance.


Can't have it both ways.

Brent


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## kilitact (Jan 26, 2015)

mark handler said:
			
		

> But without the treat of a lawsuit we will have zero compliance.


This philosophy is the issue.


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## JPohling (Jan 26, 2015)

^^ That is not a philosophy..............its a reality


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## mjesse (Jan 26, 2015)

kilitact said:
			
		

> This philosophy is the issue.





			
				JPohling said:
			
		

> ^^ That is not a philosophy..............its a reality


Although it may be cute to say it's reality, it's also dangerously false.

Apply the same logic to any other regulation and you'll see why.

-Will you only respect a man if he threatens to sue you?

-Will you only follows the rule of law under threat of personal retribution?

Answering yes to above says a lot about one's own personal issues. Not you specifically of course, I wouldn't want to be sued for defamation of character  

My point is, people will generally play by the rules without having threats "forcing" them to do so. The secret is to *clearly explain* the rules to all the players. Assuming that everyone understands ADA regs and how they are affected by them is foolish.

Writing every "violator" off as a wanton scofflaw shows the same lack of civility as the serial plaintiffs exude.

Without EDUCATION, there will be zero compliance.


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## Yikes (Jan 26, 2015)

Thanks, to Google Maps, we can see the condition for ourselves:

https://www.google.com/maps/place/Cute+Flowers+%26+Gifts+-+Floral+Arrangements+Florist+Flower+Shop/@37.352037,-121.986778,3a,15y,82.81h,80.39t/data=!3m4!1e1!3m2!1sPKM9ZQZnOEj5rQ7tbx0zbg!2e0!4m2!3m1!1s0x0:0x5cfe2d0698fbe835!6m1!1e1


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## jdfruit (Jan 26, 2015)

mjesse nailed it on education. On the left coast there are a number of programs that seek to educate business owners and recent legislation that requires landlords to notify new business tenants if the premises is "ADA compliant". So far the education has been avoided  by business owners/operators unless they have been sued and they are looking for "how do I get out of this?" answers. The notification process has very few owners/operators actually doing something toward compliance. So at this time it appears the education and notification systems are not reaching the people who will do "what is right".

Suggestions for how to get better compliance?


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## mjesse (Jan 26, 2015)

jdfruit said:
			
		

> Suggestions for how to get better compliance?


Simply defining "compliance" would be a start, but I'm concerned it is barely achievable. Look at the debate occurring here on a regular basis as to what is required/permitted/expected/reasonable.

Ask how wide a door opening has to be in new construction, and you'll get a pretty clear answer. Ask what type of things need to be done when purchasing or inheriting an existing building/business, and it seems few tend to agree.

When building officials can't agree, and building owners don't understand, only lawyers win.


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## MASSDRIVER (Jan 26, 2015)

jdfruit said:
			
		

> Suggestions for how to get better compliance?


Code compliance on new construction and remodel only.

Should not be a civil rights issue.

Brent


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## jdfruit (Jan 26, 2015)

mjesse: agreed only lawyers win; at least at this time' until "we" (interested persons on this forum) can put together something that works. I like "barely achievable" as a concept, makes the challenge more enjoyable.

MASSDRIVER: "Should not be a civil rights issue" is a good comment. By reverse logic it appears you may lean toward a different system than lawsuit enforcement, what do you suggest?


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## MASSDRIVER (Jan 26, 2015)

jdfruit said:
			
		

> mjesse: agreed only lawyers win; at least at this time' until "we" (interested persons on this forum) can put together something that works. I like "barely achievable" as a concept, makes the challenge more enjoyable.MASSDRIVER: "Should not be a civil rights issue" is a good comment. By reverse logic it appears you may lean toward a different system than lawsuit enforcement, what do you suggest?


Code compliance on new construction and remodels only.

That's what I suggest.

Should be treTed the exact same way as any other building code. It's so simple.

Adopt an accessibility standard in building codes, and pass inspection.

Brent.


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## steveray (Jan 26, 2015)

Part of the problem is Brent, that accessibility and the "energy code" are vying for "which code can be enforced the least" in most parts of the country.  And then there is the work without permits which would have upgrades involved, which creates one more large reason that people will try to do things without permits...Shame on everyone involved, but that is what I see...


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## MASSDRIVER (Jan 26, 2015)

steveray said:
			
		

> Part of the problem is Brent, that accessibility and the "energy code" are vying for "which code can be enforced the least" in most parts of the country.  And then there is the work without permits which would have upgrades involved, which creates one more large reason that people will try to do things without permits...Shame on everyone involved, but that is what I see...


Understood. What do you do when you find unpermitted work, or work not done to code?

Red tag.

Treat it as life/safety.

There is no difference in building access as any other building code.

Brent


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## mjesse (Jan 26, 2015)

steveray said:
			
		

> Part of the problem is Brent, that accessibility and the "energy code" are vying for "which code can be enforced the least" in most parts of the country....Shame on everyone involved, but that is what I see...


That says something about the viability of the Codes. If so many people on both sides dismiss the merit in them, maybe we ought to rethink their application.

As MASS says _"should not be a civil rights issue"_ to which I agree. Mandating a scope of parameters for including certain groups, by its very nature, excludes other groups. Universal Design (which is an easier concept to sell, in my opinion) doesn't fit everyone, just a majority. We might be created equal, but we sure don't end up that way.

The Code isn't perfect. Understanding that, enforcing it fairly and consistently should be the key. When the rules are too complicated for experts to agree upon, they need to be scaled back.


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## mtlogcabin (Jan 26, 2015)

> says he had trouble finding handicap parking because the blue-and-white paint marking was so faded


That happens about 4 months out of the year where it snows. The marking on the parking spot does not identify it as a space. The signage does and it is clearly visible in the Google earth link.

The aisle width in the flower shop is not the responsibility of the building owner.

Another part of the problem is the states tagging on to federal laws by adopting similar laws on the state level and then trying to enforce them. In CA's case they chose to let certain individuals sue and profit from the law suit when their ability to use a facility may have never been infringed.

A civil right is never violated until some one is denied something. Is a person using a cane able to sue because the turning space is 1" to small? How was his civil right violated. I believe if the person suing had to prove they could not use a specific facility or fixture then they have a case


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## jdfruit (Jan 26, 2015)

So far it looks like we can agree to enforce just the codes for permit jobs only. What do we do about the ADA that requires building Owners to "upgrade" on a "readily achievable" basis and have not done so for over 22 years?

Suggestions still open for consideration


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## ICE (Jan 26, 2015)

Yikes said:
			
		

> Thanks, to Google Maps, we can see the condition for ourselves:https://www.google.com/maps/place/Cute+Flowers+%26+Gifts+-+Floral+Arrangements+Florist+Flower+Shop/@37.352037,-121.986778,3a,15y,82.81h,80.39t/data=!3m4!1e1!3m2!1sPKM9ZQZnOEj5rQ7tbx0zbg!2e0!4m2!3m1!1s0x0:0x5cfe2d0698fbe835!6m1!1e1


This is a millionaire's row?  Looks more like a thousandaire's row to me.  What a pity it is that the defenseless are being preyed upon.  Such easy pickings....it's a wonder that there aren't more slime-balls screwing with them.

There are laws and then there are laws, if you know what I mean.  Society is pretty good at figuring out what's good for us without the help of the government.  ADA will never be looked upon favorably.  People wonder why we have to rearrange all of the county's furniture for a small group of unfortunate citizens in wheelchairs.  When did it become, "Hey I'm coming to visit and there better be room for me".   When did we lose the right to reply, "Stay away, I don't want you to visit".  Society resents the intrusion.  It is rude.

This lawyer and that lawyer are rapacious raconteurs but a mere pin prick on our collective :butt.  They get headlines because it's so stupid but the reality is that they are picking off stragglers and the herd numbers in the millions.

Digest what ADA is.  It is so bound up with minutia that it is the largest section in the code.  There are not enough experts that can decipher the code.  As a business owner you are expected to spend a lot of money and then you can be sued for every missed slight.  All of this because....you are in a wheelchair.  I said slight because that's the whole crux of the issue.

For the last few thousand years the disadvantaged have made it through life.  They weren't out by the side of the road starving.  They were included where practical.  How?  We helped them.  Then it became a civil right to have everything as normal as if the parachute had opened.  Ramming it down our throat isn't going to work.  Civil right is it?  You have the civil right to patronize a business if you can figure out how to get there.  A backlash is coming.  Are we still supposed to help?



> Guess what bucky, I'm not....in a wheelchair that is....I didn't cause you to be in a wheelchair.... So why in the Hell would I build a ramp to get you into my car dealership?  Are you telling me that you won't buy a car from me unless you have a $30,000.00 ramp up to the front door?  My great-grandfather started this business 80 years ago.  He went out in a wheelchair.  There was a guy with polio that kept the books in the fifties.  Now like a lightning bolt out of the blue I have to pay thousands of dollars because there isn't some stinking little sign on the front door.  What the Hell, I painted the parking lot blue.... I put in a water fountain at knee height.  We measured everything from the toilet rolls to the counters and you snuck up on me like that.  Well f()ck you and the chair you rode in on.[/]Now that's how people see ADA


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## mtlogcabin (Jan 26, 2015)

> What do we do about the ADA that requires building Owners to "upgrade" on a "readily achievable" basis and have not done so for over 22 years?


Nothing

It is not the local jurisdictions responsibility nor is it within their authority to enforce civil rights laws adopted by the federal government (ADA)

Rescind your state laws that have created this mess.


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## jdfruit (Jan 27, 2015)

Good rants with good messages; on a roll, keep going.

Suggestion box still open for business


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## ADAguy (Jan 28, 2015)

The requirement for leasing agents to notify tenants as to whether/or not a CASp survey has been performed is a start.

But as I have said before, include a notice in business renewals and require proof of compliance when new licenses are issued and businesses sold.

Failure to comply with the "2013 code" vs the ADA now allows Code Compliance officers to investigate non-code compliance and fine the business owners (smiling) more money for cities, no?

What say you to that AHJ Mark H.?


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## mark handler (Jan 29, 2015)

ADAguy said:
			
		

> The requirement for leasing agents to notify tenants as to whether/or not a CASp survey has been performed is a start. But as I have said before, include a notice in business renewals and require proof of compliance when new licenses are issued and businesses sold.
> 
> Failure to comply with the "2013 code" vs the ADA now allows Code Compliance officers to investigate non-code compliance and fine the business owners (smiling) more money for cities, no?
> 
> What say you to that AHJ Mark H.?


Cities are not in it for the money.

Cities will only invesigate CBC compliance Complaints, not ADA.

there is no CBC/state requirement of retroactive compliance with the accessibility requirements of the CBC


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## jdfruit (Jan 29, 2015)

There is a new provision for alterations "path of travel", kinda sorta like one code edition back safe harbor but you gotta upgrade retroactive for existing conditions.

11B-202.4

Exception

2. If the following elements of a path of travel have been constructed or altered in compliance with the accessibility requirements of the immediately preceding edition of the California Building Code, it shall not be required to retrofit such elements to reflect the incremental changes in this code solely because of an alteration to an area served by those elements of the path of travel:

1. A primary entrance to the building or facility,

2. Toilet and bathing facilities serving the area,

3. Drinking fountains serving the area,

4. Public telephones serving the area, and

5. Signs.


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## jdfruit (Jan 29, 2015)

It looks like my fishing expedition isn't getting many bites

Rephrasing the issue: Given that there is a general requirement in ADA to remove access barriers and hardly any existing buildings have done or attempted to remove barriers. What kind of system should be put in place to enforce ADA in lieu of current enforcement by lawsuit?

Suggestion box still open for business


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## mjesse (Jan 29, 2015)

jdfruit said:
			
		

> ... and hardly any existing buildings have done or attempted to remove barriers.


Says you.

Any real statistics to back that up?


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## jdfruit (Jan 29, 2015)

mjesse: good critique. There are no real statistics available that are compiled to show the numbers of buildings that have done or attempted barrier removals. My statement is based on anecdotal experience.

Now; do you have a suggestion on how to get this country out of the federal lawsuit mess?


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## mark handler (Jan 29, 2015)

jdfruit said:
			
		

> There is a new provision for alterations "path of travel", kinda sorta like one code edition back safe harbor but you gotta upgrade retroactive for existing conditions.11B-202.4
> 
> Exception
> 
> ...


But only when submitting for a permit

I, as a BO, cannot require a property owner to upgrade the property if the Property owner does not apply for a permit

A BO, as we disscussed, cannot enforce the ADA


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## mjesse (Jan 29, 2015)

jdfruit said:
			
		

> Now; do you have a suggestion on how to get this country out of the federal lawsuit mess?


Lawsuits are profitable for some. Capitalism is king. In this country, spilling hot coffee on your own lap could be viewed as an easy ticket to a life of riches.

Accessibility suits are the new slip-n-fall, ambulance chaser targets of days gone by. All that's missing are the infomercials.

_ - "Have you been discriminated against by a flight of stairs or a narrow aisle?" - "I'm attorney Peter Francis Geraci"_

Changing the rule of law which currently allows the extortion payouts is the best start. Folks smarter than I have stated similar methods above.

. The intent of the regulations is noble.

. Mandated benevolence is a slippery slope.

. Altruism can exist without threat of suit.

. Building violations are not a civil rights issue


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## jdfruit (Jan 29, 2015)

Mark, thanks for nibbling my bait.

Do you have a suggestion on how to get this country out of the federal lawsuit mess?


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## mtlogcabin (Jan 29, 2015)

> Do you have a suggestion on how to get this country out of the federal lawsuit mess?


The Feds created it, it is the Feds responsibility not local or state governments

Any rights given by a government can be rescinded by the same government.

 I don't loose sleep over an existing building that does not keep up with a "civil rights" law.

Personally I believe the DOJ has a fair process for investigating and mediating ADA violations before they initiate a lawsuit as a last resort of achieving compliance.

CA has given that responsibility to individuals and encouraged them to actively seek out a potential violation through a monetary minimum reward system


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## mark handler (Jan 29, 2015)

mtlogcabin said:
			
		

> CA has given that responsibility to individuals and encouraged them to actively seek out a potential violation through a monetary minimum reward system


because the feds won't deal with it

But, remember the CA access laws predate the ADA


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## mark handler (Jan 29, 2015)

jdfruit said:
			
		

> Do you have a suggestion on how to get this country out of the federal lawsuit mess?


No I don't, but if there is access, there is no litigation

How can i avoid a speeding ticket, don't speed


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## mark handler (Jan 29, 2015)

Regarding the "civil rights" law aspect, the law is not a building code.

The ADASAD and it's predecessor standards are not law.

They are standards that show how to comply with the law.

The "civil rights" aspect is to provide equal access to all.


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## ICE (Jan 29, 2015)

mjesse said:
			
		

> spilling hot coffee on your own lap could be viewed as an easy ticket to a life of riches


Who hasn't spilled coffee in their lap?  How many of you suffered third degree burns?  This woman did.  There is no reason for coffee to be just below the boiling point.  McDonalds found that out the hard way.  Their coffee is still too hot.


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## steveray (Jan 29, 2015)

ICE said:
			
		

> Who hasn't spilled coffee in their lap?  How many of you suffered third degree burns?  This woman did.  There is no reason for coffee to be just below the boiling point.  McDonalds found that out the hard way.  Their coffee is still too hot.


Relative? Maybe girlfriend? I have had pizza burn the roof of my mouth too, but I don't think I should be paid for it....I think I should learn from it and move on...


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## mjesse (Jan 29, 2015)

ICE said:
			
		

> McDonalds found that out the hard way.


Coffee is hot, saws are sharp, cars are heavy. Life is dangerous. Take some accountability for your actions. Not every accident deserves a payoff.


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## mtlogcabin (Jan 29, 2015)

> because the feds won't deal with it


So

That does not make it a states responsibility

They won't deal with a lot of issues and then sue the states when they try.

Are CA access laws a "civil right" under the states laws or are they just a vehicle to force property/business to make provisions for a select portion of the population.

As I have stated just because a state adopted a law does not mean they can't rescind it or choose not to enforce it.

People should be careful blindly accepting the "it is the law" rebuttal when a challenge or question raised on a given subject does not have an easy answer.


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## mtlogcabin (Jan 29, 2015)

The jury awarded Liebeck $200,000 in compensatory damages. This amount was reduced to $160,000 because the jury found Liebeck 20 percent at fault in the spill. The jury also awarded Liebeck $2.7 million in punitive damages, which equals about two days of McDonalds' coffee sales.

Post-verdict investigation found that the temperature of coffee at the local Albuquerque McDonalds had dropped to 158 degrees fahrenheit.

The trial court subsequently reduced the punitive award to $480,000 -- or three times compensatory damages -- even though the judge called McDonalds' conduct reckless, callous and willful.

No one will ever know the final ending to this case.

The parties eventually entered into a secret settlement which has never been revealed to the public, despite the fact that this was a public case, litigated in public and subjected to extensive media reporting. Such secret settlements, after public trials, should not be condoned. 

http://www.lectlaw.com/files/cur78.htm


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## mark handler (Jan 29, 2015)

Unruh Civil Rights Act  enacted in 1959

codified as California Civil Code section 51

"All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, *disability, *medical condition, genetic information, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever."

The act allows plaintiffs to claim treble damages with a minimum of $4000 per access violation plus attorneys fees

*NOT enforced by the Cities*

And No it is not ..."just a vehicle to force property/business to make provisions for a select portion of the population...." passed in the year 1959


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## jdfruit (Jan 29, 2015)

Picking up a couple of cogent "real world conditions" from the rants prior.

Feds won't deal with it and it is not a State enforcement issue.

Now take a look from the national view and put out a possible solution. Here are a couple of options that Shirley will get opinions but hopefully a well thought critique for pro/con on the issue:

1. National ADA enforcement by the Feds (whatever agency you may think appropriate) to make the hesitant population comply with the law.

2, National over ride on State Codes to make the ADA standards the "code" including the "ongoing obligation to remove access barriers".

3. Keep lawsuit enforcement and get lawsuit abuse reform at every State and Fed court to make access barrier removal required and limit the monetary gain by plaintiffs and blood s*** oops Lawyers.

4. Keep lawsuit enforcement and up the "bounty" to really scare the s**t out of the whole country so everyone knows the law and will do something about it.

5. Turn the whole mess over to non-profit corps and orgs so they can provide the services and construction necessary to get disabled access in the built environment.

Suggestion box still open for business.


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## mtlogcabin (Jan 29, 2015)

> The act allows plaintiffs to claim treble damages with a minimum of $4000 per access violation plus attorneys fees


Was that part of the 1959 passage?

I bet not, So when did the $4,000 per violation become law and why? Was it because the state did not have the manpower to enforce what it adopted. Maybe it was just easier to shift the enforcement to those that are affected and give them a finacial insentive to actively seek out a violation no matter how large or small and not have to proof they where actually denied equal access because of a the center of the water closet was off by 1/2 inch.

Murphy's law just seems rampant within all levels of government


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## mark handler (Jan 29, 2015)

mtlogcabin

All laws and fines are amended

A speeding ticket from the 1950 is not the same as 2015

When does not matter. The intent of finesare a deterant


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## kilitact (Jan 29, 2015)

How do they prevail against existing building in CA. If the defendants violation was not intentional and the building was existing. Safe harbor would come into play on existing buildings

"To prevail on a section 51 claim, a plaintiff must plead and prove that the defendant’s violation was intentional, unless the action is predicated on a violation of the Americans with Disabilities Act."


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## mtlogcabin (Jan 29, 2015)

> The intent of finesare a deterant


In the case of CA Unruh Civil Rights Act the demand letters and minimum $4,000 collection by anybody with a disability is not a deterrent to prevent a crime it is simply a civil forfeiture which essentialy puts those abusing the system as nothing more than a private policing agency operating on commission


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## ICE (Jan 29, 2015)

Any forceful effort to ramp up ADA compliance would certainly create a shlt storm.  As long as it is just a few people suffering at the hands of greedy lawyers the ADA industry can plod along as usual.  Hit thousands upon thousands of small businesses and ship ADA will sink.

It's just so asinine to reach back in time and tell people that they have to modify a structure that was legal when it was built.  We all know that....yet ADA became law.  Well look at a lot of other stuff that Washington did.  Is it any surprise that they screwed ole Shep with this one.  You know these are the same people that sent shipping containers of cash to Iraq and then lost track of the containers.

The population didn't rise up about that or a bunch of other goofy things that politicians threw at us.  So why would there be an uprising about ADA.  Americans figure that ADA is a good thing for a library or a Target store.  The flower shop... not so much.  If they knew the real cost of all that ADA is, the Americans I know would be shouting no.

So go ahead and get a head of steam..... you betcha.... steamroll over thousands of small businesses..... kill the tax base and then the politicians will get off their :butt and make changes.  There's no guarantee that the changes would be any better than what we have now but I don't see how they could be much worse.

The best direction to go is toss out ADA.  That will not happen.  Not because ADA is a good thing but because ADA is an industry.  I'll give you an example.  California requires that almost all vehicles pass a smog test every two years.  The test is done on us all in an effort to catch the 1% that are gross polluters.  That's a huge undertaking that created an industry.  There's all of the smog stations and equipment with lots of dollars changing hands.  There is a government bureaucracy to oversee the industry.

How well has it performed.  I don't have that information but I have heard that if you really need that smog certificate... there are ways.... and the air stinks.

Now hear what Denver did.  Denver has a problem with temperature inversions that can trap smog.  It can get stiflingly bad.  So bad in fact that Denver decided to fix all of the polluting cars and if they were beyond repair the city would buy the car to get it off the road.

Here's how they found the 1%.  Smog tests were done away with.  There was a smaller fee that still had to be collected to pay for the repairs and purchases. Sensors were placed around the city that received a beam of microwave energy from across a street.  The beam was sent through the exhaust trail of passing cars.  If the beam of energy (_could have been a laser cause I can't remember exactly....or maybe I made this whole thing up_)  Okay back to the beam of energy, if it was scattered or delayed in a particular way, the sensor knew that there was polluted exhaust and a camera took a picture of the license plate and you are busted.

It worked slick.  A lot of polluters were found and corrected.  The city of Denver has noticed a big difference in air quality.  Peolple are looking at that and saying hooray the government did a good thing.

That would never work in California.  Too much industry at stake.  So we put ourselves out every two years and pay for the privilege.

Yes I know this has nothing to do with ADA other than that they are cousins.


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## mark handler (Jan 29, 2015)

kilitact said:
			
		

> ....Safe harbor would come into play on existing buildings


The only "Safe harbor"  in the 2010 ADASAD  is the building complied to the 1994 ADAAG *Not the code that it was built under *

In CA the changes, up to 20 percent, are required *at the time of a new permit* it is not retroactive AND NOT grandfathered.


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## mtlogcabin (Jan 29, 2015)

> up to 20 percent, are required *at the time of a new permit it is not retroactive AND NOT grandfathered.*


Pretty standard across the country where permits are issued. On a whole there has been a big increase on barrier removals and accessibility issues. Never will all commercial buildings be accessible but over time through attrition and remodels and replacements more and more will be compliant. This will happen through education and the enforcement of building codes and not because a "civil right" was violated.

When a business is forced to spend money to comply with a regulation they are left with 2 choices.

1 Spend money on what is required.

2 Close up shop

The local radiator shop comes to mind. He could not afford the equipment needed to comply with the "new" regulations governing the pre-treatment of his waste water before discharging into the sanitary sewer. He closed shop after 22 years in the same location. The nearest radiator shop is now 120 miles away.


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## mark handler (Jan 29, 2015)

mtlogcabin

the civil rights portion is not a building department driven issue.

It is an issue for the designers, builders and owners of buildings, It is a risk management issue.


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## mtlogcabin (Jan 29, 2015)

Agree

All I do is tell people grandpa died as far as ADA civil rights are concerned. I would like to be ahead of the lawsuits and not get caught in one because the "building department" did not inform some builder or owner that there may be ADA guidlines they need to look at in the design and construction of their project.

Fair Housing sued Missoula city building department and won because the department had an obligation to inform developers and owners of other regulatory agencies that they needed to adhere to.

Montana Fair Housing Reaches Agreement

with City of Missoula

Montana Fair Housing and the City of Missoula reached an

agreement, which settles a complaint filed with the Montana

Human Rights Bureau in April of 2003. The complaint alleged

that personnel who work for the City of Missoula were violating

fair housing laws by not providing appropriate notification to

persons “prior” to the building multi-family housing.

“Montana Fair Housing’s mission is to ensure that ALL

Montanans have equal access to housing in this state. We

believe some of the actions and information provided by

Missoula officials was allowing apartment buildings of four

units or more to be built in ways that are not accessible and

therefore, not compliant with the Federal Fair Housing Act

and the Montana Human Rights Act. We are seeing a lot of

apartment complexes going up that are built split-level—that

is stairs leading to all apartments,” stated Bob Liston.

Pursuant to the agreement, the City of Missoula will put into

place various activities that will help ensure that owners and

developers understand their responsibilities for Design and

Construction requirements under various applicable laws.

Among the items agreed to in this settlement are:

· All City officials who have anything to do with building

permits, zoning, codes, etc. will attend training conducted

by Montana Fair Housing;

· All persons requesting a building permit will be

required to sign a letter of acknowledgement of their

understanding that they may be required to follow certain

federal and state accessibility standards; and

· Montana Fair Housing and the City will jointly ask

the State of Montana for interpretation and clarification of city officials’ responsibility to inspect for federal standards


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## mark handler (Jan 30, 2015)

The city of Los Angeles has a stamp that informs the reader,  for those that actually read the stamp on the plans, that the review is for compliance with the CBC and not the ADA. The contractor and the owners are responsible for compliance with the ADA.


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## kilitact (Jan 30, 2015)

mark handler said:
			
		

> The only "Safe harbor"  in the 2010 ADASAD  is the building complied to the 1994 ADAAG *Not the code that it was built under *In CA the changes, up to 20 percent, are required *at the time of a new permit* it is not retroactive AND NOT grandfathered.


The final rule retains the safe harbor for required elements of a path of travel to altered primary function areas for public entities that have already complied with the 1991 Standards with respect to those required elements.

It appears that any existing commercial building built before 1991 would be fair game. CA has opened another gold strike. A person can search county records for buildings built before safe harbor and than look to see if any permits have been issued since 1991. Are the owners of these buildings notified?


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## mark handler (Jan 30, 2015)

kilitact said:
			
		

> The final rule retains the safe harbor for required elements of a path of travel to altered primary function areas for public entities that have already complied with the 1991 Standards with respect to those required elements.It appears that any existing commercial building built before 1991 would be fair game. CA has opened another gold strike. A person can search county records for buildings built before safe harbor and than look to see if any permits have been issued since 1991. Are the owners of these buildings notified?


My Bad, going off memory...

"...Each facility or part of a facility altered by, on behalf of, or for the use of a public entity in a manner that affects or could affect the usability of the facility or part of the facility shall, to the maximum extent feasible, be altered in such manner that the altered portion of the facility is readily accessible to and usable by individuals with disabilities, if the alteration was commenced after *January 26, 1992*...."


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## Min&Max (Jan 30, 2015)

Before siding with McDonalds one should look deeper into the facts of the case. McDonalds was far from innocent.


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## mtlogcabin (Jan 30, 2015)

Not siding with Micky D just pointing out it was not a multi million dollar payout that the majority believes. That is why the link was provided


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## jdfruit (Jan 30, 2015)

A lot of sizzle but no steak so far

Suggestion box still open for business


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## steveray (Jan 30, 2015)

jdfruit said:
			
		

> A lot of sizzle but no steak so farSuggestion box still open for business


Make me emporer....I will fix it all!.....


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## mark handler (Jan 30, 2015)

steveray said:
			
		

> Make me emporer....I will fix it all!.....


emporer? Emperor?

Okay you are now "emporer"... fix it


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## mtlogcabin (Jan 30, 2015)

jdfruit said:
			
		

> A lot of sizzle but no steak so farSuggestion box still open for business


I do not understand the thinking that "something" needs to be done to make all businesses comply with the barrier removal requirements of the ADA and it needs to be pro-active in lieu of re-active

Do not give me the answer because it is a civil right and the law of the land

The building code has language to comply with accessibility during remodels and renovations which is re-active compliance.

The only thing that should be changed and it is at the state and local levels is the pro-active enforcement by the public as encouraged by the local and state laws. It foster an us against them mentality when the abuse starts, and it always turns into abuse by a few, and that is detrimental to all

Take the $4,000 dollar "fines" and give $500.00 to the plaintiff for his/her being discriminated and put the remaining $3,500 into a fund that a small business could borrow from at a low interest to make the improvements. The business should have to qualify for the funds as a small business with limited income/profits to receive the funds.


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## steveray (Jan 30, 2015)

mark handler said:
			
		

> emporer? Emperor?Okay you are now "emporer"... fix it


Maybe I meant Mmmmmmmmpourer.....Like bartender.....But god forbid there be accessible seating at a bar, that makes people's heads spin when you bring it up...


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## tmurray (Feb 2, 2015)

MASSDRIVER said:
			
		

> Code compliance on new construction and remodel only. Should not be a civil rights issue.
> 
> Brent


This is how it works in "socialist" Canada. Even then a lot of the times when dealing with existing there might be no way to get compliance. We just try to get as close as possible. But that is what you get when you include it in the building codes; reasonable people making a reasonable effort to provide a reasonable amount of access.


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## mark handler (Feb 2, 2015)

tmurray said:
			
		

> ..... reasonable people making a reasonable effort to provide a reasonable amount of access.


We do not have reasonable people, we have extremists on both sides of the issue. And they do not make a move until it effects them or their family.


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## Yikes (Feb 2, 2015)

My sister-in-law wants to open a coffeehouse in California.  This weekend she looked at taking over an existing restaurant (which does not have an accessible bathroom).  She asked about what needs to be done to bring the restaurant into code compliance.  The current owner said "Nothing! It's all grandfathered in, as long as you don't make changes to the building".

She visited the building department, and they told her the same thing.

So, from the "average citizen" standpoint, she thinks she's done her due diligence.  She thinks that she's verified that everything is OK.  She had no idea that the place was a lawsuit waiting to happen.  Fortunately, she happened to call and tell me what was going on.

It took 10 minutes explaining 3 different ways that it doesn't matter what the city says, and it doesn't matter whether she does building alterations or not.  It took another 5 minutes to explain the difference between building codes and civil law.  She could not comprehend how easy it is to be misled into a false security / safe haven about accessibility compliance.  The analogy that finally began to work with her was when I explained how OJ was acquitted of murder charges but still lost a civil suit.  Then I gave her links to various small business horror stories found on this forum (thanks and a hat tip to Mark Handler for all the resources!).

She's not a dummy, and she is generally aware of news and world events.  She has previously supported organizations like Joni and Friends (Joni Erickson Tada was one of the advocates and dignitaries when ADA was signed into law).  She took part in SBA seminars on how to successfully open a small business, but none of the ADA/Unruh issues were covered, other than "check with your building department".  (Heck, they barely could explain the difference between a planning department and a building department, let alone the difference between Title 24 and ADA.)

I understand that "ignorance of the law is no excuse", but believe me, outside of our small world of code officials, attorneys and expert witnesses, it is VERY complex for the average well-intentioned citizen to navigate the world of access compliance.


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## mjesse (Feb 2, 2015)

Yikes said:
			
		

> My sister-in-law wants to open a coffeehouse in California.


So, is she still planning to move forward, or did you convince her it's not worth the trouble?


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## mtlogcabin (Feb 2, 2015)

Good thing she was willing to listen to her bother in-law

Even outside of CA it is still a very complex issue



> This is how it works in "socialist" Canada. Even then a lot of the times when dealing with existing there might be no way to get compliance. We just try to get as close as possible. But that is what you get when you include it in the building codes; reasonable people making a reasonable effort to provide a reasonable amount of access.


Sounds pretty close to what we do here just south of Canada

Don't enforce civil rights law, just the building code and sometimes not all of it

(24) The building official may waive minor building code violations that do not constitute an imminent threat to property or to the health, safety, or welfare of any person

Administrative Rules of Montana.


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## kilitact (Feb 4, 2015)

It doesn't make sense that notification (30 day min.) bills were introduced and supported by the Governor were defeated. Realtor groups (big money) behind the defeat perhaps? Somehow the state, feds, should be required to inform all current and future commercial property owners of this Calif. requirement.


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## jdfruit (Feb 4, 2015)

The so called "30 day" bills were all merged into a larger bill that gave Owners 60 days to comply and fines reduced from $4K each violation to $1K overall. A lot of other provisions including; if property was inspected by a CASp (Certified Access Specialist, a State of CA cert by testing) and found in compliance with codes with a report on file prior to the lawsuit, then plaintiff has to prove violation in pre-trial process before the suit can move forward.

Even though this has been in effect for a year, not many businesses have done the inspections.


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## kilitact (Feb 4, 2015)

jdfruit said:
			
		

> The so called "30 day" bills were all merged into a larger bill that gave Owners 90 days to comply and fines reduced from $4K each violation to $1K overall. A lot of other provisions including; if property was inspected by a CASp (Certified Access Specialist, a State of CA cert by testing) and found in compliance with codes with a report on file prior to the lawsuit, then plaintiff has to prove violation in pre-trial process before the suit can move forward.Even though this has been in effect for a year, not many businesses have done the inspections.


Do you have the complete text of this bill or the bill number?


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## jdfruit (Feb 4, 2015)

SB1186

Tried uploading a pdf copy, my IT security just denied it. email me at jdfruit@gmail.com and I will send to you


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## mark handler (Feb 4, 2015)

jdfruit said:
			
		

> SB1186Tried uploading a pdf copy, my IT security just denied it. email me at jdfruit@gmail.com and I will send to you


Try:

http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201120120SB1186


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## kilitact (Feb 4, 2015)

if I'm understanding this bill when a person applies for a business license they are suppose to be given educational material that explains their responsibilities in regards to ADA. What appears to be lacking is notification, education to existing building owners and business or should this be part of the boards responsibility in providing educational material to the public?


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## jdfruit (Feb 5, 2015)

kilitact; you are correct about education efforts. Recently I was part of a team that put on free sessions for various business associations and orgs. The attendance was dismal at best with only a handful of people there, most just being presented with demand letters or going through lawsuits. The only questions posed after the talks centered on "how do I get out of this?", not on how to provide access for the building. In a dozen sessions, attendance was about 100 total overall in a city with over 800,000 people. Even the notices required for lease tenancies are not read but a few times in the thousands handed out on a yearly basis. Apparently they are just "stuck in the stack" for signatures during the lease transaction.

Better methods for outreach are definitely required for public awareness.


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