Few Using Law Aimed at Curbing Suits Over Disabled Access, Senate Bill 1608, CASp

SACRAMENTO —

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."

http://www.law.com/jsp/PubArti...jsp?id=1202436185642
Original Post
"California legislators can legislate 'til the cows come home, but education is the only answer to this problem," Hubbard said.

This is the crux of the problem, and a group of dedicated individuals tried to get some acknowledgement of that in the law. We failed. The education component is miniscule.

Sharon Toji
Cities are already strapped for money and now they have to pay for this and the public is not going to like the fact the permits fees have to be raised to cover it. Building Departments already raid the permit fees to pay for general funds budget items and the required education for the inspection staff goes down the toilet.
ccharr...
not just 'raised', but raised 'significantly'...
most jurisdictions will not be able to comply with a CASp on staff, at least not in the near term...
that means AHJ must go out to a private CASp...
the number of CASp's is miniscule compared to the number of permits that will have to be processed...
the private CASp can charge 'market rate' for services...
since there will be both a 'captive audience' (the jurisdictions) and a 'sellers market' (for CASp's services) the fees will rise accordingly, with no upper limit...
CASp's will have a hay-day, and fees will be passed to applicants (along with some additional money to pay for the AHJ's own costs in administering/coordinating the 'service')...
at some point, legislators will realize that fees by private CASp's would have to be regulated/capped at no more than the equivalent cost had the work been done by a jurisdiction employee...
that will result in 'tumult' (if you know what that means, and if not, then just say 'total confusion')...
if individual jurisdictions try to cap the fees on their own, the CASp's will just go somewhere else (where they can charge more), and the AHJ will be left in 'limbo' because he is unable to provide the mandated plan-checking function...
oy vey!
hil
i'm not so sure if that's true, Hil...
since the CASp service is not required to be done, i doubt if many will use/do it.
when presented to most builder/owners as "your permit fee is $5,000. If you would like a CASp inspection/report, that will be another $2,500 "

what do you think the builder/owner will say?
Frown
Many cities already charge a seperate fee for access plan review. The fee shouldn't be an issue.

As to inspection of existing buildings by CASp's for cities, they can choose to have it inspected or be prepared for a suit at some time in the future.
The article is incorrect on at least one account - 1608 was not the first law to allow damages for each code violation identified. That was the Unruh Act of 1968 along with the California Disabled Persons Act.

1608 was an attempt at political appeasement for businesses and will only improve the situation for building owners and businesses if they actually take action to become compliant.

My biggest issue with 1608 is the undefined requirement for the renewal of architectural licenses - without clear information on what continuing ed is required, there will be no change in the way that design professionals approach their work. That is where the problem begins in new construction and alterations to existing buildings. A friend of mine had to renew his license and found a site online where he could watch a video for an hour and a half about wheelchair lifts...and that satisfied the 1608 requirement for continuing ed on access. RIDICULOUS!
When you come right down to it, 1608 tried to do nothing more than prevent the disabled from collecting damages for doing access compliance work.

As it has always been, 1608 creates many more paid positions for a hell of a lot of extra non-disalbed people, addressing the needs of a community they rarely know or understand. Even created another costly Board that maintains control by non-disabled members.

The disabled community has seen no additional access improvements yet. Millions have been spent on things that don't remove any barriers. Cool
hil,

1608 wasn't passed for or with me. Why would I want to join something that doesn't help me? Why help them do "for us" that which we can do a better job for ourselves? Kinda of like joining a BD that address all their access issues by a majority vote.
/\/\/\/\/\

ADAguy,

Michael Whipple might be. He indicated this morning an involvement at some level. Cool
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