California adopted some reforms last year to curb predatory disability lawsuits but, as evidenced by more proposals at both the state and federal levels, the problem remains.
The Americans with Disabilities Act, adopted in 1990, was enacted to ensure access for the disabled to public accommodations, but too often it has been abused to shake down businesses — particularly smaller businesses which are more inclined to pay off plaintiffs because they lack the means to engage in expensive litigation — for the most minor of violations that do not actually impede access at all.
Businesses can be sued because a bathroom mirror is an inch too high, a sign is missing or the paint on a disabled parking space has become too faded over time. There are numerous examples like the San Ramon gas station owner who was forced to install a shield under a bathroom sink to prevent burns to the legs of someone in a wheelchair — even though the bathroom does not even have hot water.
The problem is exacerbated here in California due to the Unruh Civil Rights Act, which incorporates provisions of the ADA but offers much higher fines — a minimum of $4,000 per infraction, versus $1,000 for the federal ADA — and requires payment of plaintiffs’ legal fees. So it should be no surprise that a cottage industry of ADA hustlers has sprung up in the Golden State, which now accounts for 40 percent of ADA cases nationwide, despite being home to just 12 percent of the country’s disabled population.
Most claims are filed by a small number of serial plaintiffs (and their attorneys) who canvass strip malls and business parks looking for any technical excuse to threaten a business with many thousands of dollars in legal claims. In fact, from 2012 to 2014, 54 percent of all construction-related accessibility complaints in the state were filed by just two law firms, and 14 plaintiffs brought 46 percent of all lawsuits, the California Commission on Disability Access found.
These include people like Robert McCarthy, who does not even live in California, and who was described in a March Modesto Bee article as “an Arizona man previously convicted of child pornography and stealing his dead brother’s identity to obtain food stamps and keep alimony flowing from his ex-wife.” McCarthy has filed more than 400 disability lawsuits against California businesses, including 91 in the past year.
Assemblyman Adam Gray, D-Merced, proposed Assembly Bill 913 this year to give the courts more leeway to bar “extremely high-frequency litigants” who file more than 15 disability access lawsuits within a year from proceeding with their claims, but it was shot down by the Assembly Judiciary Committee in late March.
In a positive step last year, California enacted Senate Bill 269 by state Sen. Richard Roth, D-Riverside, which gives small businesses some time to fix certain minor or technical ADA violations, though it was not comprehensive and is not enough, by itself, to put a stop to predatory ADA lawsuits.
At the federal level, Republican Congressmen Jeff Denham of Turlock and Ted Poe of Texas each have bills that would provide businesses with a 120-day period to fix violations before a lawsuit could be filed.
Extortionate disability lawsuits tarnish the legitimate claims of others who genuinely seek redress for inadequate access. It is time to put the focus on fixing problems that actually prevent access rather than lining the pockets of a small number of “professional victims,” as a fact sheet for AB913 described them, and their attorneys.
