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.
get out of the way the discussion of the explicit targets of the statute. 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:
Demand letters, not required by statute (but
often necessary for other reasons):
a. May not contain a request for money;
include specific barriers, how those barriers interfered with full and equal
access or deterred the claimant; and the date(s) of the interference or
include the attorney’s bar number;
be sent contemporaneously to the State Bar – Attention: Professional Compliance;
be sent within 5 days to the California Commission on Disability Access.
specific barriers, how those barriers interfered with full and equal access or
deterred the claimant; and the date(s) of the interference or deterrence;
verified by the plaintiff;
an advisory (set out by statute); and
sent within 5 days to the California Commission on Disability Access.
There is a possibility for a stay and early evaluation
conference once the lawsuit has been filed.
There are limits on damages under certain
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.
1 – Butterflies 0
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.