December 9, 2009
Cheryl Miller, The Recorder
When Gov. Arnold Schwarzenegger signed Senate Bill 1608 into law last year, politicians and interest groups alike hailed the legislation as a road map to increased public access for the disabled and fewer lawsuits targeting businesses.
Fourteen months later, there's scant evidence that the new law has produced either benefit. Attorneys on both sides of the issue say the number of lawsuits brought under state and federal disability access laws has not dropped. Few businesses display the newly created window signs meant to show customers — and would-be litigants — that they've sought access inspections. And a new commission charged with creating a master access-compliance checklist for building inspectors only met for the first time in October and is already hamstrung by a relatively skimpy $80,000 budget.
"SB 1608 was a complete waste of time," said Chico attorney Scott Hubbard, who specializes in ADA lawsuits. The new law has had "no effect whatsoever" on his practice, he said.
"California legislators can legislate 'til the cows come home, but education is the only answer to this problem," Hubbard said.
Supporters say the law is a work in progress, that some of its key provisions haven't taken effect yet. But even now, San Diego attorney David Warren Peters, an ADA defense specialist who helped draft SB 1608, said the law has cut the amount of damages plaintiffs are seeking, if not the number of claims they file.
"I have fewer clients coming to me saying, 'I'm going to go out of business, I'm going bankrupt, I'm going to have to dip into my home equity,'" said Peters, the CEO and general counsel of Lawyers Against Lawsuit Abuse. Plaintiffs "can no longer make these very large demands. All things considered, that's a great improvement."
The product of years of negotiation among legislators, business groups, advocates for the disabled and trial lawyers, SB 1608 was designed to balance the powerful political interests of the business lobby, irked by frequent ADA litigation, and the plaintiff bar, which did not want litigants' rights infringed. The resulting law is meant to encourage shop owners to comply with decades-old access laws while discouraging plaintiffs who seemingly make a career of suing over minor violations.
Among the law's key provisions:
• So-called access specialists, certified by the Division of the State Architect, can inspect businesses and issue reports of their findings to owners. Those business owners can then display signs on storefront windows indicating that their properties have been scrutinized.
So far, the state has only certified 167 specialists statewide, although more certification exams are being scheduled. Those specialists have obtained 964 inspection certificates from the state, but no one knows what percentage of those certificates the inspectors passed along to building owners.
• Inspected properties can still be targeted for access violations. But owners with inspection certificates can now ask a court for a 90-day stay of litigation and an early evaluation conference meant to resolve claims early.
• Attorneys who send a demand for money or a complaint to business owners must also provide a notice explaining their possible right to a stay of the suit as well as other legal help that might be available to them.
• Statutory damages are now tied to the number of times a plaintiff was denied access, not to the number of violations found on each site.
A problem with the new law, however, is that many ADA lawsuits are brought in federal court, where the reach of California's SB 1608 is unclear.
"What the plaintiffs are doing is filing in federal court, believing that they don't have to follow the notice provision," said Catherine Corfee, a Carmichael attorney who defends businesses sued for access violations.
Corfee believes federal litigants are required to comply with provisions in SB 1608. But she's having a hard time finding a business owner willing to test this belief in court. Most mom-and-pop operators just want to settle the claims and be done with the problem, she said.
"It's a heyday [for plaintiffs] in this economy," Corfee said. "They know nobody can afford to challenge them."
Corfee's frequent nemesis is Scott Norris Johnson, a fellow Carmichael attorney and prolific filer of ADA lawsuits. Corfee, who has tracked Johnson's work for years, said he sued over access barriers an average of 357 times a year between 2005 and 2008. This year, Johnson filed 624 lawsuits through late November, including nine on one day — Sept. 8 — according to Corfee's figures.
Johnson, a quadriplegic who sues on behalf of himself, said SB 1608 "hasn't had much of an impact at all." Some property owners might be making improvements, he said, but he's still finding plenty of violations. And he said he hasn't seen any of the inspection-certified storefront signs the bill touted.
The law may eventually help improve compliance next July when local government agencies will be required to employ or retain at least one building inspector certified as an access specialist, Johnson said.
Peters, the San Diego attorney, said he understands the frustration attorneys like Johnson cause business owners. In fact, Peters is representing the 12th dentist Johnson has sued in recent years.
"But to me, Scott Johnson was not really the reason for SB 1608 because Scott Johnson was probably not going to put anybody out of business," Peters said.
The real target, he said, are plaintiffs like the one who sued two of his clients, the owners of an 800-square foot market, for $4 million. With the new law tying damages to every occurrence of blocked access, and not each statutory violation, litigants aren't seeking sky-high awards anymore, Peters said. And those who do sue, he added, can be forced into early settlement talks that may prevent costly legal fees from piling up on defendants.
"You have some powerful tools," Peters said. "You have the means to resolve these lawsuits very cheaply, perhaps for zero, and you didn't have that before."
Still, it's unclear how many defendants have pursued, or even qualified for, a stay of litigation. Peters said he has two clients with stay requests pending. But Corfee, the Carmichael defense attorney, and other ADA lawyers said they knew of no cases that settled early as a direct result of SB 1608 provisions.
If they're unhappy about the bill's impact, business groups aren't complaining. Kyla Christoffersen, a policy advocate for the California Chamber of Commerce, said the business lobby wants to give the law "a fair chance" at working before pursuing changes.
"It's just going to take some time to implement these different pieces," she said. "The problem the law is trying to address had been around for awhile, and the type of change it's trying to create is just going to take awhile to implement."