Wednesday, December 21, 2005

Predatory Lawsuits Exploit the ADA

In a recent article, I discussed reforming the Americans with Disabilities Act ("ADA") because of a threat by San Diego attorney Theodore A. Pinnock to sue the entire community of Julian, CA over alleged handicapped access violations. Mr. Pinnock adopted a "pay me now, negotiate repairs later" posture in settlement discussions, causing some Julian businesses to consider shutting down.

San Diego County Supervisor Dianne Jacob publishes a quarter newsletter for her constituents called The Jacob Journal. In May 2005, Supervisor Jacob published an excellent article on predatory ADA lawsuits. The residents of Julian are her constituents. I am forced to wonder if Mr. Pinnock targeted Julian in response to Supervisor Jacob's views on ADA lawsuits. The article is reproduced its entirety below:

Predatory Lawsuits Exploit the ADA

Gary Clasen was shocked. The small business owner from La Mesa spent upwards of $8,000 to make the building which houses his catering kitchen - which is closed to the general - public accessible for people with disabilities.

Gary thought he was doing the right thing when he got slapped with a lawsuit alleging that his building wasn't accessible to a woman in a wheelchair. The language of the suit was aggressive: we'll see you in court.

Gary wanted the opportunity to tell his side of the story. If he was at fault, he was willing to make changes. But, there was no interest in mediation and to get to court would have cost Gary upwards of $20,000. It was far cheaper to settle than to go to trial, and that'Â’s just what opportunistic lawyers behind the predatory lawsuit wanted.

Gary is one of hundreds of local victims of a scam that exploits the landmark Americans with Disabilities Act (ADA) for financial gain. The swindlers behind the scam aren't interested in ensuring that people with disabilities can enter, use and exit facilities with relative ease. Instead, the scammers are extorting business owners out of settlement dollars in exchange for dropping expensive legal cases. The practice demeans the ADA, hurts businesses, clogs the courts and must be stopped.

State Senator Chuck Poochigian has authored legislation that aims to crack down on predatory ADA lawsuits by giving business owners a reasonable window of time to come into compliance with the requirements of the law. It is a bill that is long overdue and the County of San Diego, at my request, is glad to back it.

Legal minds agree that the ADA is highly technical and contains thousands of mandatory requirements that can be ove rwhelming to a mom-and-pop business. The specifications for flush handles on toilets, hand rails and door knobs are exacting, often outlined down to the very last inch.

Some say that the stricter rules encourage business owners to adhere to the ADA. But, because of the complexity of the regulations, minor and unintentional violations are commonplace, say inspectors. Some experts estimate that less than two percent of public buildings are in compliance.

That California is one of only three states which allows people injured by ADA violations to sue for attorney's fees and punitive damages adds further confusion to the law. Unethical lawyers have learned to capitalize on this murky situation and take advantage of businesses fearful of lawsuits.

Recently, seven struggling businesses in the Spring Valley area were hit with ADA-related lawsuits on the very same day. Each suit was identical, filed about two minutes apart in in Superior Court, one of the defendants said.

Last year, an investigation by a local news team identified one lawyer who filed 340 ADA lawsuits in our region. Many of businesses named in the suit complained that the plaintiffs had never stepped foot in their shops or stores. One plaintiff admitted as much to reporters saying he'd never shopped at any of the businesses named in the suit.

Some people with disabilities aren't happy with the attention that questionable suit cause.

"I think people with disabilities have been perceived as sort of predatory, there to make a buck," Louis Frick, executive director of Access Center of San Diego told The San Diego Union-Tribune last year. "While certainly there are those people, it is not all the people."

Taking advantage of the ADA for financial gain is especially despicable because this important law is designed to ensure access and equality to all. Senator Poochigian's legislation (SB 855) would restore integrity to the ADA. It allows victims to sue for legitimate injuries and flagrant abuse. It stops schemers from shaking down businesses who are eager and willing to open their doors to everyone.

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