Meant for Good, Disability Access Laws Have Encouraged Costly Legal Abuses

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UPDATE: An article It’s Not Cool to Bring Ponies Onto Berlin’s Subway was posted on the December 19, 2012 Atlantic/Atlantic Cities web site. This animal was apparently not a guide animal – the article acknowledged that “blind people sometimes use eensie-weensie ponies as guide animals” and linked to a 2003 BBC news story.

The Atlantic@TheAtlantic

FYI: It’s not cool to bring ponies onto Berlin’s subway http://theatln.tc/SW8asE  via @AtlanticCITIES

The story apparently amused people, as a related tweet was quickly retweeted 16 times and favorited by 8 people in one hour. I replied with these tweets:

Kevin Dayton@DaytonPubPolicy

@TheAtlantic @AtlanticCities 2012 California ADA lawsuit: GameStop & Marshalls didn’t allow guide mini horse into store http://www.courthousenews.com/2012/03/22/44915.htm …

TheAtlantic @AtlanticCities US DOJ ADA regulations address miniature horses as guide animals http://www.ada.gov/service_animals_2010.htm … https://www.federalregister.gov/articles/2010/09/15/2010-21824/nondiscrimination-on-the-basis-of-disability-by-public-accommodations-and-in-commercial-facilities#p-162 …


 

The magazine Chief Executive (which I’ve never heard of before today) claims to have conducted its eighth annual survey of hundreds of corporate CEOs to assess the business climate of the 50 states and rank the states from best to worst. While many states have moved up and down the rankings over time, all eight surveys conducted to date end up ranking Texas as the best and California as the worst.

The usual commentators denied the validity of the survey, decried the results of the survey as an evil omen, or celebrated it as evidence of continued progress against the so-called 1%. But looking at the extent of lawsuit abuse in California, it’s not surprising CEOs would rank this state as having the most difficult environment to conduct business.

This morning I attended a breakfast meeting hosted by California Citizens Against Lawsuit Abuse (CALA), the National Federation of Independent Business (NFIB) in California, and the Citrus Heights Regional Chamber of Commerce. Tom Scott, executive director of California Citizens Against Lawsuit Abuse, gave an update on the worst trends in lawsuit abuse against small businesses.

After citing some statistics about the disproportionate amount and stunning costs of lawsuits filed in California (both against private businesses AND public agencies), Mr. Scott focused on the statutory authorization of “private right of action” to enforce laws, in particular the federal Americans with Disabilities Act (ADA) and the associated state accessibility laws for disabled citizens. As you can see if you go to the links, trying to get a systematic understanding of these laws is a formidable task.

For ten years, Northern California news media and business groups have followed the legal activities of Scott Johnson, a disabled lawyer with a firm based in Carmichael (near Sacramento) called Disabled Access Prevents Injury, Inc. He routinely sues small business owners or threatens to sue them for non-compliance with accessibility laws unless they pay a settlement.

If you peruse the numerous news articles on these cases, you’ll see that many of the targeted small businesses were indeed out of compliance: some because of ignorance, some because of confusion over the interpretation of the law, and some because full ADA compliance would be absurdly costly. Some business owners claim they have been forced to close their operations because of the legal threats. In other cases, the businesses claim the charges are false and unsubstantiated.

Pressure from business groups to address this abuse increased when Mr. Johnson began targeting small businesses operating out of older buildings in economically-struggling rural areas of the Sierra Nevada mountains. Waves of litigation threats have hit numerous mom-and-pop businesses in small rural communities such as Pollock Pines and Foresthill.

According to Mr. Scott, public outrage against these legal tactics reached “the tipping point” in July 2009 after the highly publicized decision of the owner of the Squeeze Inn burger joint in Sacramento to stop squeezing his customers into his cramped long-established location. The owner had been sued by Jason Singleton, another lawyer who frequently takes legal action against small businesses that are not compliant with accessibility laws.

I found a concise June 2011 presentation on the web of an attorney I don’t know (Marc B. Koenigsberg of the law firm Greenberg Traurig, LLP in Sacramento) entitled “Avoiding Disability Access Lawsuits.” He dared to include a list (on page eight) of six Northern California attorneys notorious for legal actions for accessibility. He’s only scratching the surface.

In Southern California, a Los Angeles lawyer named Morse Mehrban who specializes in ADA lawsuits reportedly sued two businesses in March 2012 after employees there refused to allow a disabled man named José Estrada to bring his miniature pony (named “Princess”) inside. I was not able to find a copy of the actual lawsuit on the web (to confirm this bizarre only-in-California story is not an urban legend), but it is true that federal regulations authorize dogs and miniature horses to be service animals for the disabled: see here. Business owners: please make a note of the following federal regulation, from the September 15, 2010 Federal Register:

(9) Miniature horses. (i) A public accommodation shall make reasonable modifications in policies, practices, or procedures to permit the use of a miniature horse by an individual with a disability if the miniature horse has been individually trained to do work or perform tasks for the benefit of the individual with a disability.

(ii) Assessment factors. In determining whether reasonable modifications in policies, practices, or procedures can be made to allow a miniature horse into a specific facility, a public accommodation shall consider–

(A) The type, size, and weight of the miniature horse and whether the facility can accommodate these features;

(B) Whether the handler has sufficient control of the miniature horse;

(C) Whether the miniature horse is housebroken; and

(D) Whether the miniature horse’s presence in a specific facility compromises legitimate safety requirements that are necessary for safe operation.

So next time someone comes in your china shop with a miniature horse, please understand that you need to make reasonable accomodations for it.

The meeting concluded with a discussion on how Congress and the California Legislature can suppress destructive ADA lawsuits while still making sure that small businesses make reasonable accomodations for disabled people to have access. On the federal level, Congressman Dan Lungren (R-Gold River) has introduced House Resolution (HR) 3356, which the House Judiciary Committee’s Subcommittee on the Constitution is expected to consider in June. Meanwhile, Assemblywoman Beth Gaines (R-Roseville) has introduced Assembly Bill 1878, which the Assembly Judicary Committee will consider and almost certainly reject (because of the opposition of trial lawyer organizations such as the Consumer Attorneys of California) on May 8.

2 comments

  1. Kevin Dayton says:

    To present another perspective, I want to share an excerpt from an email I received from someone I respect regarding this topic. It is based on experience:

    “If you have ever dealt with what my family deals with on a day to day basis, caring for a disabled person who has every right to be where you can be but people don’t want you there because it inconveniences them, it helps to appreciate the issue. I will spare you the details. This strikes a very personal chord with me. At the end of the day it is an issue of being excluded from things where others have access. It is a familiar and compelling issue.”

    Kevin Dayton

  2. Rosalie Stafford says:

    re: “disabled person who has every right to be where you can be but people don’t want you there because it inconveniences them”
    Post Office, Court House, Foodstamp HQ, okay — disabled people have “every right” to expect access. But private businesses? To expect private businesses to spend extraordinary sums of money to provide access to all (including their pet ponies) displays the most selfish sense of entitlement. When I was a kid, my parents had a bar & grill. Behind the counter was a sign: “We Reserve to Right to Refuse Service.” I asked what that meant & my father (a guy who was as far-left as you can imagine) told me: “If someone is obnoxious, we can tell him to go home.” I guess the Reserve Right to Refuse Service sign would constitute hate-speech today.

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