A Message from Chamber President Dan Schroeder:
Putting Fairness Back Into Access Laws

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MAY 2005 - State Senator Poochigian of Fresno is sponsoring SB855 that will block needless and frivolous lawsuits by people using the Americans with Disability Act (“ADA”) and Title 24 in California as a way to profit. The ADA and Title 24 were passed in order to require businesses and public entities to make their facilities accessible to people with physical disabilities. They were not created so that a handful of lawyers and opportunistic clients could make a living by filing countless lawsuits against businesses for technical noncompliance. SB855 seeks to stop that while continuing the spirit of requiring businesses and public entities to meet the access requirements in the ADA and Title 24.

By way of background, the ADA is a federal law mandating the minimum requirements for accessibility of all businesses and public entities in the country. California passed Title 24, which establishes a more detailed and, in many situations, a more stringent accessibility requirement that businesses and public entities must meet in their facilities to provide access to all people with physical disabilities. Built into those laws is the right of any person who is harmed by a facility that has not met those requirements to file a lawsuit to not only force them to comply with those requirements, but also allow them to recover up to three times the actual damage they have incurred, but no less than $1,000, and recover their attorney’s fees. However, the legislature failed to provide some type of a requirement that before a person can sue they had to tell the business of the problem and give them the opportunity to cure it. SB855 seeks to change that.

While there is no disagreement that businesses and entities that are intentionally failing to comply with the access laws should be forced to comply with them, the problem is that many of the violations are either technical violations with no harm or, in most cases, violations by small businesses that are unaware of the non-compliance with the access laws. As an example, many small businesses lease facilities either assuming that the facilities are in compliance with the access laws or unaware that there are any particular requirements that they are bound to follow. Simply put, they don’t know. And if many of these small businesses were first notified that there was a non-compliance issue, they would at least have the opportunity of being alerted to the problem to correct it. However, the current access laws do not require an aggrieved party from notifying the business of any non-compliance or give a business the opportunity to correct that non-compliance before proceeding with the filing of a lawsuit.

In addition, many of the non-compliance conditions are only technical violations that a business may be simply unaware. Neither the ADA nor Title 24 have any construction tolerance standards, or what would more commonly be referred to as “close is good enough” standards. As an example, Title 24 requires toilet paper holders be 19 inches off the floor. If the toilet paper holder is 18-3/4 inches off the floor, the business is in technical violation of Title 24 entitling somebody to sue for damages and their attorney’s fees. As a further example, accessible toilets are required to be 18 inches from the wall. If the toilet is 17-7/8 inches from the wall, one of the litigious individuals could file a lawsuit for this violation and recover their attorney’s fees and costs and a minimum of $1,000.00. While being a quarter of an inch off of a set of plans in construction is acceptable and normal in the real world, neither the ADA nor Title 24 provide for any similar construction tolerances. The results are situations where some plaintiffs have filed dozens of lawsuits seemingly looking for businesses that have a technical failure and then filing a lawsuit against them demanding not only correction to the deficiency, but thousands of dollars in damages and their attorney’s fees. SB855 will bring an end to this.

SB855 seeks to create a notice procedure in order to bring equity and fairness back into the law. SB855 would establish procedures for an aggrieved party to notify the business of an alleged violation and then provide them an opportunity to correct any deficiency that may exist. If the business corrects the deficiency, the aggrieved party could still sue, but could only for actual damages they have suffered.

While opponents of SB855 may argue that it will deter people from demanding compliance with the access laws, the question is how? If someone discovers a non-compliant condition at a business, they can still notify the business who will still be required to cure the problem. If the business fails or refuses, then the individual can still file a lawsuit. Even if the business corrects the nonconformity, people who have suffered an actual injury as a result of the noncompliance can still sue for damages. The reality is that the only people who will be deterred if SB 855 becomes law are those vexatious litigants who are profiting from litigation.

The Greater Stockton Chamber of Commerce supports SB855 because it does not in any way dilute the purpose of the ADA and Title 24 in making businesses comply with those requirements. What it will do is stop unnecessary litigation and give businesses an opportunity to cure any nonconformity and avoid an expensive, unnecessary lawsuit. Please join the Greater Stockton Chamber of Commerce in contacting our legislatures in Sacramento urging them to support SB855.