Wednesday Jun 27 2012
New legislation focuses on ADA compliance issues
By: Sara Seyydin Journal Staff Writer
Businesses in the state?s Eastern Federal Court District seeing the most lawsuits
More lawsuits were filed against businesses under the Americans with Disabilities Act at the beginning of 2012 in the federal court district Auburn is located in than any of the other three court districts in California combined, according to Cris Vaughan, a Loomis-based attorney. Vaughan, who represents many clients in accessibility cases, said after conducting research, his firm estimates that there were over 200 lawsuits filed in the first four months of the year in the Eastern District of California in the U.S. Courts for the Ninth Circuit. The Eastern District covers the eastern portion of California roughly along Interstate 5 from the Oregon border to Bakersfield. Of those cases, Vaughan estimates about 140 of them of them were filed by Carmichael-based attorney Scott Johnson. Vaughan and some local business owners agree that new legislation being proposed by Congressman Dan Lungren (R-Gold River) could extend some relief to businesses at the federal level, while still accomplishing compliance with ADA regulations. Conversely, Johnson says the proposed legislation could actually make it more difficult for businesses to become compliant and increase the amount of lawsuits filed. He said the best way for businesses to avoid a lawsuit is to have their property inspected by a certified access specialist and correct any violations. Vaughan said the combination of federal law and California state law has probably helped propel more accessibility lawsuits. Federal law provides for injunctive relief, while under state law victims can collect statutory damages. Victims are entitled to $4,000 for each instance of discrimination, he added. ?The California law combined with federal law has created an award or incentive system for alleging properties do not comply with access requirements,? Vaughan said. A detailed list of specific violations and a longer amount of time to complete improvements are hallmarks of Lungren?s newly proposed bill the ACCESS Act, House Resolution 3556. It would allow businesses 60 days to respond to a letter listing violations and 120 days to correct the violations or submit a plan for doing so in a timely manner. Vaughan said he agrees it would be helpful for businesses to have a list of the specific violations present in their building. It is scheduled to be heard in the House Judiciary Constitution Subcommittee today. Lungren said based on feedback from businesses, he believes the law will help advance accessibility and limit lawsuits. ?Instead of creating incentives for litigation, it creates incentives for resolving of the problem,? Lungren said. He said the hearing was the first serious step toward getting the legislation considered. Carol Gaines, who owns Weimar Country Store with her husband Mike Gaines, has a court date to fight a lawsuit filed by Johnson in 2014. She said it would likely cost her about $40,000 to make changes to the store?s gas station island. The list of offenses, as proposed in the ACCESS Act, would have saved her more than $800 to have her property inspected, she said. She also agrees the timeline set forth in the bill could be helpful in giving businesses more time. What would have helped her most of all though, was notification as accessibility regulations were changed. ?Apparently codes have changed over the years and there was no notice to business owners that this code has now changed. We had no idea until I was handed a lawsuit,? Gaines said. She said with all of her disabled clients able to get around the station, store and bathrooms, she never realized there was a problem until it was too late. Johnson, who as a quadriplegic represents himself, said the legislation proposed by Lungren could have unintended consequences. He said for example, if a business didn?t have disabled van parking and he sent a letter to the business owner stating that and then filed a lawsuit, if later he were able to park and go inside that same business, there could be even more violations that would warrant another lawsuit. ?The Ninth Circuit says once you identify a single barrier related to your disability, you have standing for injunctive relief, known or not known, as relates to your disability,? Johnson said. He added that he always sends letters prior to suing a business and gives them 90 days to respond. Johnson said he has never been found by a court to be a vexatious litigant and all of his lawsuits have merit. ?Every case I bring has merit. Every case has prior notice given. Every case includes pictures of at least one architectural barrier. I have never had a case dismissed based on it being frivolous,? Johnson said. He said in comparison to lawsuits brought by other people, the settlement amount he asks for are low and do not include attorney?s fees. No other minority group has to send a letter prior to filing a lawsuit when they are discriminated against, he added. ?If they don?t want a lawsuit, fix your property, comply with the law, get a CAS inspection. It?s been over 20 years,? Johnson said. ?They simply need someone to blame, so they blame me.? Reach Sara Seyydin at email@example.com, or follow her on Twitter @AJ_News.