A California law — SB 1186 — signed by Gov. Brown in 2012 was supposed to curtail frivolous lawsuits based on ADA and state laws on disability access. But has there been any “real change” to frivolous ADA lawsuits in two years?
Yes! Unfortunately the number of lawsuits is up and rising!
One of the benefits of Senate Bill 1186 is that it made it illegal for plaintiffs to send letters to businesses threatening to sue if owners do not agree to settle for a certain dollar amount. SB 1186 also gave business owners some recourse against this! Business owners can file complaints with the State Bar of California for lawyers who send demand letters asking for monetary awards.
One way the professional plaintiffs and their attorneys get around this is to not send any demand letter prior to filing the suit. So now the business owners first notice of any issues with accessibility is in the form of a lawsuit. No warning whatsoever.
Even though California has only 12% of the nations disabled, it produces 40% of the ADA lawsuits.
Let’s take a fresh look at what’s happening right now around California …
Sacramento to Tahoe/Truckee is getting hit hard by a Carmichael based attorney and quadriplegic Scott Johnson. Johnson drives a white 1997 Ford E350 van, modified with hand controls and a wheel chair lift. He travels the Central Valley and visits hundreds of restaurants, liquor stores, vet hospitals, apartment complexes, dentists, doctors’ offices and small businesses of all types. He’s filed lawsuits from South Lake Tahoe to Stockton, often blanketing a region first with letters warning merchants he’s visited that he has uncovered alleged violations of the ADA. In his letters, Johnson threatens the businesses to upgrade their facilities or he’s suing.
San Francisco to Fresno, businesses are getting slammed by the Moore Law firm from San Jose
In 2013 there were a total of 947 ADA-related lawsuits filed statewide. Approximately 513 of these were filed in the Northern & Eastern court districts. Roughly 40% of those filed were by one law firm based in San Jose, CA. The Moore Law Firm owned and operated by Randy and Tanya Moore. Randy’s brother Ronald is disabled and has been represented by his brother in more than 134 lawsuits in California since 2009. The Moore law firm has roughly 8 clients who account for 518 out of the 649 ADA suits filed since 2009.
The Bay Area, Central Valley through to Southern California are getting hit as well.
David C. Wakefield from San Diego represents Arizona resident Robert McCarthy, a convicted thief & pedophile who has filed more than 254 disability lawsuits in California since 2001. This team does not discriminate when it comes to which type of business they sue! Hotels, shopping centers, car dealers, small mom & pop diners to liquor stores are among the long list of business effected by this plaintiff.
Turlock, Merced & Atwater is getting hit by local disabled resident Aurora Cervantes represented by Stockton based attorney Daniel Malakauskas. Ms. Cervantes uses a cane and claims to suffer from depression. She has repeatedly filed claims against multiple local businesses ranging from fast food restaurants to retail shops.
Southern California residents Cecil Shaw & Juan Moreno travel from their homes independently up to Stanislaus & Merced County to seek out business to sue. Shaw has filed more than 134 lawsuits in less than four years and Moreno has been involved in more than 375 lawsuits. These are just a few of the 2-dozen professional plaintiffs that have sued approximately 35,000 businesses up and down California in recent years.
So what do I tell my clients?
I tell them to constantly check their own areas of responsibility and to work with their tenants during T.I projects to ensure the construction is done properly and that new barriers don’t “pop up”!
The California Commission on Disability Access (CCDA) has released a study in California that identifies the most common barriers being sued over. One of the tasks this commission has been charged with is to track alleged construction related physical access violations in the commercial and retail market.
They have been tracking the recorded demand letters and court filings in California state/federal courts. The CCDA has analyzed more than 3,500 claims over the last 18 months, which include three times that amount of violations. With the results, they have compiled information on the 10 most common violations of accessibility. Surprisingly enough the top 4 of these 10 all have to do with parking which comprises over 40% of the top 10. The top two alleged violations were actually 25% of the total violations.
So what does this mean in terms of analyzing our existing properties and business’, and what we need to be aware of?
- Loading zones and van access aisles were the number one alleged violation. This means either the van access aisles were not 8′ minimum wide, or were not located on the passenger side of the van stall, or did not have appropriate markings, or had slopes in excess of 1:48, or worse … missing altogether. Loading zones for passenger drop-offs may not be the required 5′ minimum wide by the 20′ required length; they may be missing the appropriate markings, may not be on the same level as the pull-up space, or again, they may be missing altogether.
- Existing accessible parking spaces not being compliant was number two for alleged violations. This could be a myriad of items from incorrect sizes, to excessive slopes or even potholes, to incorrect or missing markings on the parking surface, or even location of the accessible stalls in proximity to building entries.
- The third-most alleged violation had to do with non-compliant or missing parking signage. Typical signs are the International Symbol of Accessibility (ISA) which is required at every accessible stall, the California $250 Minimum Fine sign also required at each accessible stall, van accessible signs at one out of every 6 accessible stalls, and the California Tow Away sign with the appropriate information visible from each accessible stall or vehicular entry from the public street. These signs also have requirements for installation height and contrast, among other things.
- The fourth-most common alleged violation is the incorrect number of accessible stalls, whether missing altogether or just computed incorrectly. One item to note, with previous laws, the number of accessible stalls was computed based on the total number of stalls on the site. With the 2010 ADA, which became mandatory in March of 2012, this computation is based upon facility totals, not total overall spaces. Facility is parking structures and parking lots – each computed individually, many times giving a short fall of the amount actually required.
The other items on the top 10 list were:
5. Insufficient path of travel to/from the parking lot and the public sidewalk
6. Entry doors were not accessible or missing the ISA
7. Curb ramps were not accessible due to excessive ramp slope exceeding 8.3%, wing slope exceeding 10% & lack of truncated domes.
8. Reception/ sales counters, bar counters, and work/ dining table surface heights set higher than 34” above the floor and knee clearances too low not allowing 27” clearance from the floor.
9. Interior access aisles were non-compliant with items not located on an accessible route, product stacked in the path blocking access.
10. Toilet room entries were not accessible with incorrect or lacking wall and door signage, height, door pressures exceeding 5lbs, insufficient clear space inside and fixtures mounted above 40”, coat hooks above 48” or protruding into the required maneuvering space.
It goes without saying that it might be worth your while to evaluate the parking on your existing projects and properties. While everything may appear to be fine on the surface, the current statistics show this as one of the prime concerns for inaccessibility. Re-grading may be more costly, but items such as re-striping with compliant sizes, signage, or even installing additional disabled stalls are a minimal expense and can greatly increase the level of accessibility, thereby reducing possible violations.
It’s time … time to take a fresh look at your properties and determine how they fair against the list! Some simple striping and signage may very well prevent you from being the next ADA target.