By Andrew S. Ross
One of the biggest reader responses this column received in recent months concerned the epidemic of "drive-by" lawsuits filed against small businesses in San Francisco and elsewhere under the 1990 Americans With Disabilities Act. A follow-up column, in November, outlined some resources and procedures small business owners might use to avoid the sometimes fatal damage these lawsuits can cause.
Since then, more attention has been paid to the matter in the media, by small business agencies and in Sacramento. But to little effect.
"It's as bad as ever. If anything, the lawsuits have been increasing," said Regina Dick-Endrizzi, executive director of San Francisco's Office of Small Business.
Enter Sen. Dianne Feinstein, D-Calif. In a letter to California's Senate President Pro Tem Darrell Steinberg last month, Feinstein demanded that the Legislature do something to stop the "shakedown" tactics pursued by a small group of plaintiffs and lawyers that "threaten the viability of small businesses in our state." If the Legislature failed to take action, she warned, "I will consider introducing legislation in the U.S. Senate."
Any such legislation presumably would address the ease with which, in Feinstein's words, "abusive lawsuits" and "coercive demand letters" can be filed in California. And, unlike federal law or in other states, how it can cost small-business owners found in noncompliance with ADA regulations guaranteeing ease of access $4,000 for each violation, per day, no matter how trivial and easily fixable the alleged violations are.
What happens in most cases - here's the "coercive demand" part - small-business owners settle, often for tens of thousands of dollars, in exchange for plaintiff and lawyer to walk away (and also forget about the violations).
Small-business owners and local officials in California have been screaming about this for years. Some GOP lawmakers, including the Senate's GOP leader, Bob Dutton of Rancho Cucamonga (San Bernardino County), have sponsored legislation seeking to address some of the issues.
Last year, Dutton introduced a bill that would give business owners 120 days to fix violations from the time a demand letter was received - a so-called right-to-cure provision. It got voted down in committee by three Bay Area Democrats - Sens.Mark Leno of San Francisco, Ellen Corbett of San Leandro and Noreen Evans of Santa Rosa. Dutton's office is looking for a similar bill, reducing the time allowed to 90 days, to get a committee hearing this month.
That bill, SB1186, is mentioned favorably in Feinstein's letter. But don't hold your breath. In a response to Feinstein's letter last week, Steinberg noted the Legislature has consistently rejected right-to-cure proposals in the face of opposition from disability rights and other civil rights organizations, and said Dutton's bill would "remove the incentive to encourage businesses to attain ADA compliance."
Steinberg says current state law works just fine, pointing to a provision allowing small-business owners to at least temporarily stave off a lawsuit if they sign up for a state-certified ADA inspection and then take measures to fix violations. "Some 'professional plaintiffs' have continued their practice of sending pre-litigation demand letters for immediate settlement," Steinberg acknowledged, "albeit for significantly lower amounts." But he saw no reason for the Legislature to change its mind.
A call and e-mails requesting comment from Feinstein's office and what her next steps may be were not returned Monday.
David Peters, a San Diego attorney who has worked on hundreds of ADA cases around the state and heads up an advocacy group, Lawyers Against Lawsuit Abuse, said Feinstein's letter is important. "It's getting people's attention, you bet," he said. So is Steinberg's response.
"Since it circulated, phones have been ringing off the hook," Peters said. "It will be interesting to see how this plays out."