Bill to Curb ADA Lawsuit Abuse Signed by Brown

Photo courtesy of man pikin, flickr

Photo courtesy of man pikin, flickr

Governor Jerry Brown signed Senate Bill 269 (Roth) which gives some relief to small business. Among other things, the bill allows small businesses that hire a Certified Access Specialist to inspect their facilities a chance to fix Americans with Disabilities Act compliance issues before a suit can be filed. It also allows all small businesses to correct basic issues like signage and warning strips without penalty.

Last year, Senator Roth introduced SB 251 which was essentially the same legislation except it also included tax credits to assist small business owners with the costs of retrofitting their place of business to be compliant with the ADA. Governor Brown vetoed SB 251 due to these tax credits, arguing that tax credits should be part of the budget negotiation process.

Following this setback, Senator Roth reintroduced legislation in the form of SB 269 sans the tax credits, which gained bipartisan support and ultimately the Governor’s signature.

California’s legal climate remains one of the highest costs of doing business in this state, and SB 269 moves the needle in the right direction. While this bill does not completely fix California’s hostile legal climate, hopefully it helps to move us away from being annually ranked the #1 Judicial Hellhole in the nation by the American Tort Reform Association.

The Americans with Disabilities Act was intended to increase compliance and access, not become a source of income for trial lawyers. SB 269 helps prevent unnecessary lawsuits which frequently serve only as a cash cow for attorneys rather than a means to make business more accessible for all.

SB 269 is listed on our The Good, The Bad, & The Ugly bill list as a “Good” bill for these reasons, along with other key legislative priorities for NFIB. Again, we thank Governor Brown, Senator Roth, and the bipartisan support for this bill and hope it moves us toward a more positive legal climate for small businesses in California.

CA Executive Director of the National Federation of Independent Business.

This piece was originally published by Fox and Hounds Daily

SF Disability Discrimination Case Could Hobble Law Enforcement Nationwide

adaThe Americans with Disabilities Act, passed by Congress in 1990, was the product of good intentions. Its proponents — President George H.W. Bush chief among them — wanted to eliminate arbitrary barriers to the physically disabled. “Let the shameful wall of exclusion finally come tumbling down,” Bush solemnly declared at the legislation’s signing ceremony. The ADA sailed through Congress with little resistance. Unfortunately, as is so often the case with federal do-goodery, those good intentions produced a poorly drafted statute full of vague definitions, ambiguous obligations, and complicated enforcement schemes, made even worse by byzantine enabling regulations and far-fetched judicial interpretations.

Twenty-five years later, the true consequences of the ADA are still unfolding. Hijacked by trial lawyers, government bureaucrats, and activist judges, the noble goals of the ADA have brought instead a host of other absurdities: costly and ubiquitous (and largely unused) curb cuts and ramps in public areas; Braille buttons on drive-through ATMs; alcoholic pilots and truck drivers, deaf lifeguards, and one-legged firefighters; drug-addicted employees who can’t be fired, lest employers “discriminate” against a “protected class”; and serial litigants — some of whom have filed thousands of lawsuits — who make a cottage industry out of fly-specking small businesses’ compliance with arcane and prolix structural requirements for bathrooms and parking lots. Much to the likely chagrin of the ADA’s proponents, the definition of “disabled” is not limited to people in wheelchairs — it includes those suffering from morbid obesity, drug addiction, phobias, allergies, narcolepsy, sleep apnea, and dyslexia. Of the estimated 43 million “disabled” Americans protected by the ADA, fewer than 2 percent are in wheelchairs, the vast majority of whom reside in nursing homes.

Employers must “reasonably accommodate” this thicket of disabilities by restructuring job duties, granting leaves, providing technological support, hiring assistants, granting reassignments, making “individualized determinations,” and entering into “interactive dialogues,” all while ignoring “discriminatory customer preferences” and, of course, “traditional stereotypes” (no matter how well-founded). The ADA essentially requires employers to function as social workers and ignore the economic burden unless it constitutes an “undue hardship.” In short, the ADA has short-circuited common sense.

Alas, critics have railed against the asininity — and astronomical compliance costs — of the ADA, to no avail. Despite their most dire predictions about the law’s nonsensical potential those critics had no inkling of the ridiculous extremes that were yet to come, thanks to an inventive ruling of the San Francisco-based U.S. Ninth Circuit Court of Appeals.

Last year, in Sheehan v. San Francisco, the Ninth Circuit held that the ADA applies to law-enforcement officers, and requires them to “accommodate” armed, violent suspects if they are “mentally ill” (and therefore “disabled”). The case arose from an incident in 2008 involving two female police officers who were responding to a call for assistance by a social worker at a group home for the mentally ill. The social worker had been threatened with a knife by one of the residents under his care, a middle-aged woman with schizophrenia named Teresa Sheehan (whose condition had deteriorated because she refused to take her medication). The social worker wanted to have Sheehan involuntarily committed for 72 hours for evaluation and treatment, and requested that the police transport her to the mental health facility for that purpose. When the officers arrived, Sheehan became violent, grabbed a knife, and threatened to kill the officers. The officers drew their weapons and unsuccessfully attempted to subdue Sheehan with pepper spray. In the course of trying to arrest Sheehan (who was still brandishing the knife), the officers shot her several times. Sheehan survived, and sued the officers (and the City of San Francisco) in federal court for various claims, including violation of the ADA. Sheehan did not dispute that she was armed and violent. She alleged, however, that “the officers should have respected her comfort zone, engaged in non-threatening communications and used the passage of time to defuse the situation.” The federal district judge, Charles Breyer (younger brother of U.S. Supreme Court Justice Stephen Breyer), dismissed the case before trial on summary judgment. Sheehan appealed.

The Ninth Circuit ruled, as a matter of first impression, that the ADA applies to all arrests, even those involving violent confrontations, and that a jury should decide whether the officers “reasonably accommodated” the violent, knife-wielding suspect “by employing generally accepted police practices for peaceably resolving a confrontation with a person with mental illness.” The city appealed to the U.S. Supreme Court, which heard the case on March 23. The city contends that the ADA should not apply to police conduct when public safety is at risk. According to the FBI, about 400 people are killed each year by police—as justifiable homicides in the exercise of deadly force. Sadly, at least half the people killed by the police have mental health problems of some sort, according to a 2013 report from the Treatment Advocacy Center and the National Sheriffs’ Association.

Do we want juries second-guessing hundreds of police encounters each year to determine if armed, violent suspects were mentally ill and if the police “reasonably accommodated” the suspects? Police officers are not psychiatrists. They cannot be expected to diagnose whether a violent suspect is mentally ill or merely mean and aggressive. People who threaten to kill the police are by definition unreasonable and even irrational. Some social scientists believe that all criminals are emotionally disturbed; should this entitle them to special treatment by law enforcement? Hamstringing the police endangers public safety. Split-second decisions made in violent confrontations with armed suspects are not suitable for Monday morning quarterbacking. If the Supreme Court does not reverse the Ninth Circuit’s ludicrous decision in Sheehan v. San Francisco, the errant intentions of the ADA will have succeeded in disabling the police.

Federal Bill To Curb Shakedown Ada Lawsuits Introduced

There has been a lot of focus on what will California do this year to stop the shakedown lawsuits associated with the Americans with Disability Act (ADA). Many bipartisan bills have been introduced at the state level (including AB 52, AB 54 and SB 67), but to solve the problem we also need the federal government to take steps to stop these shakedown artists.

Well, there’s good news on that front. Congressman Ken Calvert (CA-42) and Congressman Duncan Hunter (CA-50) have re-introduced the ACCESS (ADA Compliance for Customer Entry to Stores and Services) Act – . This legislation is designed to help small businesses comply with the ADA, and stop the abusive ADA lawsuits that have hurt so many businesses in California.

“The purpose of the ADA is not to give abusive trial lawyers access to the hard earned money earned by small businesses,” said Rep. Calvert when he reintroduced the bill. “The ACCESS Act will ensure that disabled individuals continue to have access throughout our communities while protecting small businesses from abusive lawsuits. The important thing is to find ways to improve access, not fleece small business owners and jeopardize jobs.”

The ACCESS Act requires someone who wants to file a lawsuit against a business for an ADA violation provide the business owner/operator a written notice of the violation. The owner/operator would have 60 days to provide the plaintiff a description outlining the improvements that would be made to address the barrier, and then have 120 days to address the violation. If the owner/operator fails to meet any of these conditions, the lawsuit could then move forward.

CALA applauds Representatives Calvert and Hunter for reintroducing this critical legislation. A whole host of additional elected officials have signed on to H.R. 241. I hope more will join them, and that it can be a truly bipartisan effort like the ADA bills here in California.

California has over 40% of the nation’s ADA lawsuits, while having only 12% of the country’s population.  But this isn’t just a California problem. Other states like Florida, Louisiana New York and Minnesota are beginning to see more of these lawsuits. That’s why the ACCESS Act deserves to become law.

Originally published by Fox and Hounds Daily

Tom Scott is executive director, California Citizens Against Lawsuit Abuse

Another Shakedown ADA Lawsuit Against a CA Business Shows the Need for Reform

Just ask small businessman Jerry Brannon in Stockton.  He recently got sued by Scott Johnson for $38,000 for non-compliance with the Americans With Disability Act. However, instead of settling, Mr. Brannon has decided to fight. He plans to spend up to $50,000 fighting this lawsuit.

According to a television news report, “Scott Johnson has made legal claims against many business owners in the Sacramento area, claiming he’s suffered because his disability won’t allow him to fully access their stores and restaurants.”

Brannon said Johnson has “taken the ADA and made a business out of it.”

According to the news report, Johnson has been linked to thousands of lawsuits. 

I applaud Mr. Brannon on multiple fronts. This is not going to stop until the federal and state governments seriously pass legislation to stop these forms of lawsuit abuse. In 2008, the California State Legislature attempted to deal with the issue with SB 1608, which did not have the desired outcome. In 2012, the California State Legislature again attempted to find a way to stop the abuse with SB 1186 and this has also failed to stem the tide of abuse. The federal government has had a couple of bills related to ADA shakedowns lawsuits, but they have never been passed.

So here we are in 2014 and the lawsuits keep rolling. From Lake Tahoe to the Central Valley, we continue to see ADA lawsuits against small businesses, and there appears to be no end in sight. Interesting fact: there are more than 3.5 million small businesses in the state of California but only 500 Certified Access Specialists. How is every small business supposed to stay up to date when there aren’t enough access specialists?

When a business has to close due to an ADA shakedown lawsuit, no one benefits. Employees lose their jobs and governments lose revenue from employment property taxes. Who benefits from that scenario? Not even the disabled will benefit as everyone will simply have to travel further for those services.

I know there will be ADA legislation in California in the coming year and I am hopeful that with the changes in the U.S. Senate reform may be easier to pass in Washington. We, as a nation, need something to happen to help curb this abuse. It would behoove our legislators to find a reasonable compromise. A 120-day corrective action period at the state and federal level would stop these predators in their tracks. Let’s do it. Enough rearranging of deck chairs – let’s find a real solution.

Tom Scott is Executive Director, California Citizens Against Lawsuit Abuse

This piece was originally published on Fox and Hounds Daily

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