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California is business friendly for ADA lawyers

POSTED May 20, 2014 8:03 p.m.

Sam Guedoir is among at least 21 Manteca merchants and commercial property owners slapped with “drive-by” American with Disability Access compliance lawsuits.

Century Furniture is being sued for $40,000 in civil rights damages for trite things such as a chair for a dining room set for sale being left too far from a table after a customer sat in it therefore impeding handicapped access. Guedoir believes the lawsuit is a prime example of why California is a horrible place to do business.

Guedoir is wrong. California is a great place to do business if you are a lawyer. And that applies even to the white hat lawyers that come to the defense of small business owners targeted by their brethren that intentionally prey on the little guy knowing big companies have the resources to effectively fight back. Billable hours at $160 plus per hour defending against dubious lawsuits is still good money.

Carmichael attorney Scott Johnson – a modern-day circuit litigator that travels far and wide in order to select the targets that work best – has more than 3,000 such lawsuits under his belt. Not one has been aimed at the likes of Wal-Mart whose stocking practices at its 24-hour stores are even more imposing for a quadriplegic in a wheelchair than one dining set chair left too far from a table in a furniture store. The big guys can fight back on dubious lawsuits much easier than little guys like Guedoir.

What makes this all the more disconcerting is that Gov. Jerry Brown signed into law reform legislation that become effective Sept. 19, 2012 that was designed to reduce shakedowns and litigation while increasing disability access.

It was a law drafted and adopted by the California Legislature after U.S. Senator Dianne Feinstein – inundated by northern and central California small businesses targeted by Johnson and several of his colleagues with drive-by ADA lawsuits – asked then Senate President Pro Temp Darrell Steinberg to do something to correct the situation.

What the legislature – a place where an inordinate number of members, chiefs of staff and other key personnel have law degrees – crafted had all the appearance of addressing the problem without effectively doing it.

Politically, the lawyer-infested legislature was forced to act. They had just rejected a straight-forward piece of legislation that would have given anyone receiving a demand letter about being out-of-compliance 120 days to correct the situation or else face fines and damages.

Such language would have re-enforced the intent of laws to assure compliance with ADA access without making a carpetbagger litigator rich. Those who failed to act would pay the price.

By zeroing in on a grace period between the demand letter and actual damages it meant lawyers couldn’t maximize the return for their effort. Instead the legislature came up with the law signed by Brown. It’s key points include:

• reducing the statutory damages per incident from $4,000 to $2,000 if all unintentional ADA violations are corrected within 30 days and the business has 25 or less employees and gross annual income under $3.5 million.

• reducing the statutory damages per incident from $4,000 to $1,000 if all unintentional ADA violations are corrected within 60 days and the business has 25 or less employees, a gross annual income under $3.5 million, and was inspected by a Certified Access Specialist prior to the alleged infarction date or had a building permit signed off for new construction between Jan, 1, 2008 and Jan. 1, 2016.

• no longer could a lawyer request a settlement payment in lieu of filing a lawsuit when they send demand letters to targeted businesses.

All lawyers like Johnson did was simply bide their time. Instead of quickly collecting $4,000 from those advised by their own attorneys to reduce their losses, a lawsuit now has to work its way through the court system.

As for the other aspects of the reform legislation, the business still gets stung substantial money for an unintentional ADA violation.

It also doesn’t help that California has its own set of ADA requirements that in some cases are more stringent and even costlier than federal standards.

The City of Manteca discovered that when they went to make the council chambers ADA compliant. City staff was stunned to discover state ADA requirements tacked upwards of $10,000 onto the original cost estimates for the upgrading of the council chambers for handicapped access.

Ironically, merchants and property owners who plan to attend a free workshop to educate themselves in a bid to protect themselves as much as possible from ADA drive-by lawsuits that could cost a business such as Manteca’s The Hair Company over $100,000 will be meeting in those very chambers this Wednesday from 10 to 11 a.m.

Once you take out audio visual and sound system upgrades, the overhaul of the council chambers and access to make it ADA compliant to today’s laws cost taxpayers a cool $400,000 plus.

That required a lot of construction workers.

So you see it isn’t true. California is business friendly especially for lawyers and others who make their living off drive-by ADA lawsuits.

 

This column is the opinion of Dennis Wyatt and does not necessarily represent the opinion of The Journal or Morris Newspaper Corp. of CA. He can be contacted at dwyatt@mantecabulletin.com or 209.249.3519.

 

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