Wednesday Oct 03 2012
New law is ‘baby step’ toward protecting businesses from frivolous lawsuits
By: Jon Schultz, Journal Staff Writer
Auburn area business owner says it would have helped her
One Auburn-area business owner said a new law protecting businesses from frivolous lawsuits filed under the Americans with Disabilities Act could help others even if it’s too late to make a difference in her case. Gov. Jerry Brown signed Senate Bill 1186 in late September – legislation aimed at providing relief to businesses who are sued for potential accessibility violations. Carol Gaines, co-owner of Weimar Country Story, said it would have helped her “immensely.” Gaines is being sued by Carmichael-based attorney Scott Johnson, who as a quadriplegic represents himself, and she said what would have helped her most is that, under the new law, Johnson would have had to specifically detail all potential compliance violations. Johnson, who has sued several Auburn area businesses, said his letters ask for “voluntary access compliance” and includes “tools” for bringing the property up to code. Gaines said he had sent her a general letter stating various code violations, some of which did not apply to her store, and she had to solicit an expert’s services to determine what actually was not up to code. She said he had sent it to a physical address listed for the business, not the P.O. Box where the business’ mail is sent, therefore she never received it but had later reviewed it in the legal proceedings. “It was including codes for showers and things like that, so it was a general standard-type letter that covers everything,” Gaines said. “And it’s up to you to figure out what’s wrong.” The new law states attorneys are required to “state facts sufficient to allow a reasonable person to identify the basis for the claim,” and they must also submit copies of the letter to the State Bar of California and the California Commission on Disability Access. Although Gaines said someone offered to do her inspection for free, she had priced the inspections at anywhere from $500 to $700. Gaines has a court date in April 2014 and she said making the required changes to the store’s gas station island alone would cost about $40,000. She said the store also needs to completely remodel its bathroom. “We could have spent the money on (getting up to code) rather than on the attorney,” Gaines said. Along with preventing a general complaint letter, the bill, authored by Sen. President Pro Tem Darrell Steinberg, D-Sacramento, and Republican Sen. Bob Dutton of Rancho Cucamonga, features several provisions that present roadblocks for those seeking a large payoff. It will reduce potential fines for disability access violations from a $4,000 minimum to as little as $1,000 – depending on how quickly the defendant corrects the issues. Furthermore, it bans demand letters that threaten to sue a business over a possible violation if it does not settle by paying thousands. The law also prevents the “stacking” of multiple claims of the same violation simply as an attempt to increase a settlement, requiring them to provide reasonable explanation for why the person made repeated visits to the noncompliant site. Assemblywoman Beth Gaines, R-Roseville, said “it’s a tiny step in the right direction but it doesn’t go far enough.” “The single best way to provide access and the ability for businesses to survive is the right to cure,” she said. “In my bill, I wanted 120 days for a small business to fix the problem. “In other words, an attorney can’t just drive by and send a letter and take it immediately into litigation.” The bill Gaines authored with the 120-day window died in committee, she said. “I will be watching this, and we’ll see if this is true reform,” the assemblywoman said. “And if the abuse continues, I’ll come back with more legislation. I’ll sponsor another bill with more reform. “This small baby step, 1186, proves that both sides of the aisle recognize the gravity of the problem.” Asked for his reaction to the new regulations, Johnson said that the bill “didn’t go far enough.” “I wish it required property owners to provide a warranty of accessibility for all commercial real estate, which means regardless of what their lease provisions dictate in their landlord tenant agreement, landlords are responsible for accessibility,” Johnson said. “Because right now, landlords a lot of times allocate responsibility to tenants and tenants really don’t want to put a lot of money into property that is not theirs, which is why a lot of the access doesn’t exist. “So if you took away the landlord’s ability to allocate that responsibility, they would have to do it and they would do it.” Jon Schultz can be reached at email@example.com.