The 1990 Americans with Disabilities Act was a good idea — making sure that all people, including those with disabilities have access to services and businesses — but the interpretation of the regulations in states like California that award monetary damages for ADA violations has created an abundant income for some and economic crisis for others — not the intent of the law.
Carmichael attorney and quadriplegic Scott Johnson recently blanketed Tahoe area, Pollock Pines, Camino and Placerville businesses and property owners with federal lawsuits citing violations of ADA laws and claiming monetary damages of $4,000 for each actual visit and each “deterred, foregone” visit.
Business owners, many of whom thought they were ADA compliant, are frightened. In the current economy some can’t afford to remodel or even to hire an attorney to represent them in a federal lawsuit. Others have old buildings on tiny lots that don’t lend themselves to the needed modification. They accommodate people with disabilities by moving furniture or in any way they can. Some property owners haven’t addressed the compliance issue at all. Few know what tools and options are available to save their businesses and still accommodate people with disabilities.
So, many businesses settle out of court by paying damages and hoping Johnson goes away. With their money in his pocket, he does go away, but he or another disabled person could come back if the violations are not corrected.
In a phone interview with the Mountain Democrat, Johnson described his actions: “I’m changing the way California does business, one ramp at a time.”
Johnson, 47, one of the busiest “frequent filers” in California, was one of the subjects of a Sacramento Bee series in 2006 about the issue of ADA lawsuits. While he does file lawsuits on behalf of other disabled people, Johnson said the majority are filed with himself as the plaintiff. He receives the monetary damages and with almost 1,100 lawsuits, at $4,000 for each visit, the pennies stack up to more than $4 million.
Pollock Pines resident Kerry Richman is subject to seizures and her service dog accompanies her everywhere.
“When I first moved here, people weren’t used to seeing a dog in a restaurant or the grocery store. I had to educate them, even my dentist. It’s a community with very few disabled people. But what Scott Johnson is doing makes me sick. The ADA Act was designed to get businesses to comply — not to shut them down. I educate, I don’t sue.”
Why don’t businesses comply?
It’s been more than 20 years since the Americans with Disabilities Act went into effect, so why are some businesses still not in compliance? Part of the problem may lie in the discrepancies between the California Building Code accessibility laws and the federal ADA laws.
“When we inspect a building, it’s according to California Building Code and the accessibility laws,” said John Brownlee, Placerville building inspector. “California accessibility laws are almost the same as the federal ADA laws — in some cases more stringent.”
Neither the state nor the local building agencies are legally allowed to enforce any ADA provisions that they know are more stringent than California’s Title 24, according to the California Disabled Accessibility Guidebook. At times, the differences are of a degree or an inch — inches that Johnson with his team of assistants take full advantage of.
In order for a business to be absolutely sure they are in compliance with federal ADA regulations, the Placerville Planning Department often recommends the business owner hire a Certified Access Specialist who will come out to the business to identify areas of non-compliance and explain what needs to be done.
“If you’ve hired a Certified Access Specialist (CASp) to do a survey and you’ve developed a plan of action and are taking steps to become in compliance, that stops the lawsuits,” said Brownlee. “There’s no timeline on when all the compliance issues have to be resolved, but there’s also no out on ADA compliance. It applies to government buildings and multi-family residences like apartments as well. Even historical buildings are only partially exempt.”
Johnson agrees about CASp.“The best insurance against a lawsuit is to have a CASp certification. It’s a tool that’s grossly underutilized by businesses. I’ve never sued a single business with a CASp certification. I didn’t put Pony Expresso out of business. They could have relocated in a compliant building or made the modifications which would have only come to about $200.”