You can catch more flies with good legislation . . .

By Julia Campins

               Add this to the pile of poorly thought-through legislation:  SB 1186.  This new legislation, pushed by Senator Feinstein and recently signed by Governor Brown, is a response to the perceived problem of frivolous litigation against public accommodations on behalf of people with mobility disabilities.  There are so many problems with the previous sentence.  First, as a plaintiffs’ attorney, I am particularly sensitive to legislation targeting only plaintiffs.  What is the difference between frivolous litigation on behalf of plaintiffs and frivolously advanced defenses?  Both waste time, money and resources.  So why target only plaintiffs?  Second, the legislation, both in its concept and in its final form, ignores that there is pervasive and constant discrimination against people with disabilities.  In the area of public accommodations alone, people with disabilities face barriers multiple times per day, every day.  Next time you enter a store, look around and see how someone using a wheelchair would have gotten in.  Chances are, it’s not the same way you entered, and that’s if he’s lucky.

                But this isn’t a posting about plaintiffs, and it isn’t a posting about how constant discrimination still is, despite everyone’s fervent desire that the civil rights laws have solved all of our problems.  This instead is about California politicians trying to kill a fly with a sledgehammer, missing the fly, and slaughtering a bunch of butterflies. 

                Let’s get out of the way the discussion of the explicit targets of the statute.[1]  The story is that there are individuals, in cahoots with slimy attorneys, who visit small businesses for the sole purpose of finding tiny technical violations of the ADAAG and holding the business hostage for early settlements.  Because California has provisions for statutory damages of $4000 per violation, an individual can visit a hotel for 1 night, spend $50, and make $4000 if the counter is an inch too high.  That is the story.  I refuse to pass judgment on other attorneys here.  I refuse to fall into the trap of considering some violations “tiny” or “technical.”  I also support small businesses (and indeed have just opened my own) and hope that the good ones all succeed.  Finally, I believe that we all should do our part to eliminate barriers to access.  But let us suppose this story is true and that it is a problem.

               SB1186 attacks this perceived problem of disability access cases in the following way:
(1)    Demand letters, not required by statute (but often necessary for other reasons):
a.       May not contain a request for money;
b.      Must include specific barriers, how those barriers interfered with full and equal access or deterred the claimant; and the date(s) of the interference or deterrence;
c.       Must include the attorney’s bar number;
d.      Must be sent contemporaneously to the State Bar – Attention: Professional Compliance; and
e.      Must be sent within 5 days to the California Commission on Disability Access.
(2)    Complaints must:
a.       Include specific barriers, how those barriers interfered with full and equal access or deterred the claimant; and the date(s) of the interference or deterrence;
b.      Be verified by the plaintiff;
c.       Contain an advisory (set out by statute); and
d.      Be sent within 5 days to the California Commission on Disability Access.
(3)    There is a possibility for a stay and early evaluation conference once the lawsuit has been filed.
(4)    There are limits on damages under certain circumstances.

               Others have commented on the First Amendment concerns in the new demand letter requirements, and I will not address those.  What I am concerned with here is how this legislation will work to the detriment of those who need to use courts to protect their civil rights, and will barely cause a ripple in the practices of the targets of this legislation. 

               Let’s return to the story of the problem litigants.  How hard of a requirement is it for them to list the date or dates of their visits?  Indeed, they planned the visit for the purpose of the litigation.  How hard of a requirement is it for them to list the specific barriers?  They went with an eye toward barriers and, like a paid expert, were looking for specific violations.

               Now, compare this problem litigant to a real person visiting a public accommodation because she likes the food or he needs to purchase some clothing.  She may not make a calendar entry every time she goes to Burger King.  Do you?  He may not go clothing shopping on a regular basis.  Both may use cash and not get receipts.  She may remember that there was a problem getting into the restaurant, but not remember until she returns or is reminded that not only was the door impossible for her to open, but there wasn’t enough room for her to open it.  Or, more importantly, if she was unable to get into the restaurant at all, how is she to know that there was no seating for people who use wheelchairs?  The legislation makes her lawsuit difficult or impossible (assuming that it is interpreted to require specific dates of visits), but has done nothing to stop the intended targets. 

Score:  Flies 1 – Butterflies 0

[1] For the purposes of this posting, I’m going to assume that the bill proponents did not carry the malicious intent of preventing all people with disabilities from suing to protect their civil rights.  That may not be true, but it makes me feel better about humanity to assume that it is.