Access v. Abuse: Decades of attempts to reform ADA have fallen short

Access v. Abuse: The ADA’s Impact in Silicon Valley Part 3

California often sets the precedent by passing progressive policy, championing everything from climate change initiatives and health care policy to leading the country with fair accessibility laws.

But the Golden State has become a breeding ground for controversy, as it far outpaces the rest of the country in the number of cases filed for violations against the Americans with Disabilities Act, a landmark law passed in 1990 that granted the disabled community newfound access to public spaces and has since been hailed as a long-awaited civil rights act.

In 2018 alone, 10,163 cases were filed for violations against the law, according to a report from the high-profile law firm Seyfarth Shaw, an exponential uptick from five years before when there were only 2,722 cases. 

The ADA’s enforcement in California tells two stories — it’s either working as intended to protect and uphold the rights of millions of disabled people, or it’s being used as a legal tactic against small businesses to financially suck them dry. What started out as a law meant to protect and ensure the rights of millions is now pitting disability rights groups against small businesses.

Since no federal or statewide government agency exists to inspect small businesses to verify ADA compliance or pinpoint violations, plaintiffs and their attorneys wind up as the state’s default inspectors and ultimate enforcers of the law.

And the fight for access for the disabled community versus the unscrupulous attorneys looking to exploit a well-intended law for a quick buck leaves behind no winners.

A handful of attorneys sprinkled across the state use the ADA as a money-making scheme to squeeze dollars out of small business owners but often force these shops to close, as many owners can’t afford to bring their businesses up to code or settle. That reality hits close to home in Silicon Valley, as most recently, a beloved San Jose staple — Cafe Crema — was forced to shut its doors.

On the other hand, while the law has secured and upheld the rights of disabled residents, many still face obstacles that force them to stay home or meticulously plan an outing. As San José Spotlight reported last week, disabled residents in Silicon Valley still face incredible barriers and struggle for access to public spaces, on top of the social stigmas attributed to being disabled.

“If somebody came into my business and said, ‘You’ve got to put out $100,000 because you’re out of compliance’ and I look at how much it would cost and I say, ‘Well, I’m out of business because I don’t have the money to do that,'” said Denise Marchu, a foster parent to an 8-year old disabled child and the executive director of Santa Clara County’s Kinship, Adoptive, and Foster Parent Association. “I also understand the laws and the reasons why because we don’t want to limit anyone from participating in the community.”

Legislation to ‘fix’ what’s broken

Over the years a slew of state and federal legislators have attempted — unsuccessfully — to amend the law and close any potential loopholes by allowing businesses time to fix deficiencies.

U.S. Rep. Ken Calvert (R-CA) last July introduced H.R. 4099, known as the ACCESS Act, to require written notice of infractions and 60 days to fix them before an attorney can sweep in with a lawsuit. Calvert introduced a similar bill in the House in 2015 that failed to gain traction.

“Small businesses and the jobs they create continue to be under siege by serial litigants, who manipulate well-meaning laws, like the ADA, just to line their own pockets,” Calvert said in a recent statement. “Small business owners want to comply with the ADA and give their customers access to their business. The ACCESS Act simply ensures they have time to make necessary improvements before being subjected to costly lawsuits.”

A similar bill, the ADA Education and Reform Act of 2017, which would also require written notice to businesses and a 60-day period to fix violations, stalled after passing the House in early 2018.

While some disability rights activists acknowledge the rampant ADA abuse, they oppose reform bills that would allow a grace period to fix problems, saying they’d water down the ADA’s protections.

“What other protected group of people under civil rights has to get a notification from a public facility in order to access services?” said Sheri Burns, disability advocate and executive director for the Silicon Valley Independent Living Center. “Taking away civil rights from people with disabilities in order to ‘solve the problem’ is not the right solution.”

Instead, Burns said cities could include a fee that would cover inspections when business licenses are obtained or renewed, or develop an inspection program similar to fire or health departments. The problem, however, is not just statewide and requires a national change, she added.

In California, some of the first attempts to reform the ADA stem back to more than a decade, when Assemblyman Tim Leslie, a Republican from Tahoe City, introduced AB 20 in 2005 — a bill that would’ve prevented plaintiffs from collecting damages for small or technical violations if no one was denied access. That same year, state Sen. Charles Poochigian from Fresno introduced SB 855, which would have required the plaintiff to notify the business owner before filing a lawsuit.

Both died in the Legislature.

In 2015, state Sen. Cathleen Galgiani, unveiled SB 67 to reduce the profit incentive to file “frivolous lawsuits” based on minor and technical violations. Her bill died in the Senate.

In a bipartisan effort, Assemblymembers Kristin Olsen and Adam Gray from the Central Valley also introduced a pair of bills — AB 52 and AB 54 — aimed at implementing a grace period, significantly reducing damages and providing reports about lawsuits to the California Commission on Disability Access.

While former Gov. Jerry Brown signed one of the two bills, AB 54, it was only after provisions allowing businesses time to fix violations were removed. AB 52, which would’ve provided businesses six months to fix violations, died in the Assembly.

For 30 years, major attempts to reform the ADA and give businesses a chance to “cure” deficiencies prior to being sued have faced stiff competition and died in the Legislature.

That’s why some people like Marchu think the solutions should come from the local level.

“I wish there was a program for these small businesses — if they made under a certain amount a year or had an older home in a community — that they could get some help from the city or county,” Marchu added. “Something could be done.”

Other ways to help with ADA compliance

For many business owners who get hit with an ADA lawsuit, the response is usually the same — they didn’t know, they weren’t aware or they couldn’t settle so they had to close.

But disability activists say business owners have had more than enough time and resources to comply with the law. And while no governmental agency exists to provide regular ADA compliance checks, similar to fire or health code inspections, the city has some resources to help — if business owners know about them.

San Jose has 12 certified access specialists (CASp) — state-licensed code and building inspectors who specialize in ADA compliance — compared to just one in Los Angeles, Burns said. These city inspectors can check private businesses for compliance when requested — but not proactively. They primarily work on ADA issues related to the city’s public buildings.

There also are private inspectors who can do ADA inspections for a fee.

“It’s something very simple that would only cost on average $1,000 to $2,000 to hire a certified access specialist to come in and tell you what you can do and could be doing to make your business more accessible,” Burns said.

Dwight Ashdown is one of those private inspectors and has worked in the Bay Area for more than 10 years. He said most businesses have racked up countless technical violations without knowing it.

“There are hundreds of different requirements for ADA compliance,” Ashdown said. “I’ve discovered over the years that I could walk into virtually any business on the street and see things that are not compliant.”

It’s usually not until a business owner is threatened with a lawsuit or sees a colleague get sued that they look into getting a city or private ADA inspection, he added, And while a CASp certificate of an inspection can temporarily provide protection by reducing statutory damages, which start at $4,000, Ashdown said the inspection itself may not be enough to stop a lawsuit.

“Having a CASp inspection and having that certificate is not a guarantee that a business won’t get sued,” he added.

While San Jose can provide some inspections upon request, there is no city-led assistance program that can help with financing the pricey upgrades to a building to ensure compliance.

That’s why Christopher Hickey, who oversees the San Jose city inspectors, suggests creating a regional oversight committee as a better potential solution, especially since his department doesn’t have the resources to do outreach to businesses about ADA compliance.

“There’s an opportunity where the county and other cities can be involved,” he said. “ADA complaints aren’t just in the city of San Jose, it’s a regional issue. The idea of a regional approach might be the best avenue.”

Contact Nadia Lopez at [email protected] or follow @n_llopez on Twitter.

Editor’s Note: This is the third of a three-part series examining the impact of the ADA in Silicon Valley.