Small business struggling with accessibility issues

Improving access for the disabled in our built environment is an important societal objective. In the U.S., an increasing portion of our population are seniors with mobility issues, people with illnesses effecting their mobility, and war veterans with ambulatory wounds. In 1990, the U.S. Congress passed the landmark legislation known as the Americans with Disabilities Act (“ADA”).
California has disabled access oriented construction standards that predate the ADA, as well as hefty statutory fines and provisions awarding attorney fees to disabled plaintiffs. However, many access barriers still exist on our public sidewalks, in our public transportation, and in commercial facilities (referred to as “public accommodations” under the law.)

California has a unique and unintended convergence of federal and state laws, which has had several consequences, both good and bad:

1) Litigating public access issues is profitable and involves little risk for disabled plaintiffs and their attorneys, giving rise to a cottage industry based on access litigation.

2) The ADA’s exempts buildings constructed before its enactment, with the exception that they must remove access barriers when it is “readily achievable” to do so. This exception within an exemption, with an impossibly vague standard, ensures that nearly all businesses in the exemption category are vulnerable to lawsuits – much more so than non-exempted buildings with clear standards of compliance, which are enforced by inspectors during construction.

3) Removal of access barriers in California is likely far ahead of other states because of the fear access lawsuits.

4) The majority of lawsuits are brought against independent small businesses which are forced to settle because they cannot afford to litigate the merits. Additionally, most commercial liability insurance policies do not cover access lawsuits.

5) The majority of lawsuits are brought in Courts reserved for complex, expensive, and large dollar amounts at issue even though they could be equally effective and profitable to plaintiffs if brought in Small Claims Court.

Thus the laws in California have had the good effect of removing access barriers and the negative effect of unfairly victimizing small business and property owners. There have been several efforts by both the California legislature, as well as California courts, to address this latter effect. However, these efforts have been largely ineffective, and have even had unintended negative consequences for small businesses.

For example the California’s Federal Southern District Courts force defendants to go through an expensive and coercive procedure before they can defend the case on the merits. In this procedure, the defendant or his/her attorney is forced to “meet and confer” with the plaintiff’s attorney on his/her property. Subsequently, the parties are required to attend an “Early Neutral Evaluation Conference,” in which a federal magistrate judge typically warns the defendant that he or she must agree to a settlement payment or risk catastrophic expenses in litigation. During this early neutral evaluation procedure, the parties are prohibited from using the legal procedures for learning what evidence the other side may have (the “discovery” procedure) and are prohibited from filing motions challenging the other party’s evidence. The parties are also required to prepare and file various briefs as part of the early neutral evaluation process. In cases in which the defendants have a meritorious defense, this procedure adds several thousand of dollars in legal fees. Additionally, because the laws generally provide only prevailing plaintiffs the right to recover attorney fees from defendants, this process generally drives up plaintiff settlement demands.

In my experience, the “meet and confer” requirement sometimes creates potentially dangerous situations. The majority of access cases are brought against small businesses in old buildings by “professional plaintiffs,” i.e., plaintiffs who have filed anywhere from dozens to hundreds of cases. The defendants often know the plaintiffs were not real customers trying to gain access to their businesses but rather professionals trolling for businesses vulnerable to access lawsuits. (Notice that I don’t say “trolling for access violations.” That is because for structures that predate the ADA, the “barrier” removal standard is completely subjective.) Thus, the defendants feel they are being extorted through force and threat rather than law. So imagine a scenario in which a defendant, sometimes financially struggling, witnesses a plaintiff’s attorney drive on to his property in a luxury car, step out of the car dressed in expensive clothing and accessories, and proceed to walk around criticizing various parts of the defendant’s business. I have long felt that this process would eventually erupt in an a violent incident.

The current system of improving access is grossly unfair, financially catastrophic for many small businesses, and even dangerous. Many times, businesses determine that it is more feasible to remove a particular customer amenity, such as bathrooms or parking, than to upgrade the amenity in an attempt to make it more access compliant. All too often, the alleged barrier is entirely hypothetical rather than real. It often involves some variation from current access construction standards or an access amenity that is fully compliant. Most frequently, the business owner has never received a complaint about the alleged barrier from a real customer who is disabled, nor had a disabled customer unable to gain access to their business. Because the majority of the majority buildings occupied by small business defendants pre-date the ADA, these are precisely the circumstances that were intended to be exempt from the law. All of the legislative discussion regarding the exemption for “existing” buildings during the drafting and adoption of the ADA established that Congress intended that owners of existing structures need do no more than remove obvious access barriers when it is inexpensive and practical to do so.

(Senator Dale Bumpers warned that the standard “readily achievable” barrier removal was “like the term beauty.   Beauty is in the eye of the beholder and readily achievable means [w]hat some judge says it means?”  Bumpers and other senators warned that the vague standard would lead to “excessive and excessively costly litigation.” The ADA’s principal author, Senator Tom Harkin, rejected the predictions, asserting that potential customers who are disabled unable to access a business in an old structure would simply take their business elsewhere.)

Nevertheless, it is hard to deny that the fear created by a cottage industry trolling for potential access litigation has, overall, created more conformance with current access construction standards. However, for society, the question is whether the cost (or lack of justice) it is worth it. Certainly, most of the small business defendants in these lawsuits don’t feel that way. As an attorney representing defendants in this area of law, I believe that there are more fair and equally effective ways to remove access barriers but that will be the subject of a future article.

None of the foregoing should be interpreted to mean that there aren’t things that small businesses in older buildings can do to deter these lawsuits, or that there aren’t strategies and defenses that can be employed once a lawsuit is filed against them. First, make accessibilities upgrades starting from the outside (many of the lawsuits appear to be “drive-by” lawsuits, with plaintiffs driving around looking for potential defendants). Engage a Certified Access Specialist (“CASp” – get references first) to inspect, recommend modifications, and hopefully “certify” the property as compliant. Make sure existing disabled access amenities are well maintained (e.g., there is a current spate of lawsuits over “faded” lines on disabled parking spaces). Finally, if sued, engage an attorney experienced in access litigation. He or she will be able recognize defective lawsuits vulnerable to dismissal, will be familiar with each plaintiff attorney’s minimum settlement amount thresholds, and will know litigation strategies to minimize damage and attorney fee recoveries, optimally posture the case, and sometimes obtain an early dismissal.