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As many business owners and commercial landlords know all too
well, the number of Americans with Disabilities Act (ADA) lawsuits
appears out of control, particularly in California where
approximately 40 percent of ADA lawsuits are filed. Why is
this?
The answer lies in the legislative design. The ADA was signed
into law under the George H.W. Bush administration in 1990. It was
designed to avoid further government bureaucracy by allowing
aggrieved individuals to enforce the law by filing private
lawsuits with the courts, rather than having a
governmental agency enforce the law.
While this approach sounded attractive on paper, and perhaps
could have been if executed properly, it has instead given rise to
a cottage industry of serial ADA plaintiffs who file dozens,
hundreds, and sometimes thousands of ADA lawsuits.
To enforce the law, even for minor technical violations, an
individual files a lawsuit in state or federal court. Litigation is
an expensive process, both for the parties involved and for
society. Judges, clerks, lawyers, paralegals and other
professionals are all involved in litigation, as well as a very
inefficient civil procedure (courts are not nimble).
It is a very inefficient way to ensure that good work is done
– a lawsuit over a $5,000 property upgrade could end up
costing upwards of $30,000 to implement through litigation. A
prevailing ADA plaintiff can recover their own attorneys’ fees
and a court order of injunctive relief mandating changes to the
property.
California has further incentivized ADA litigation by passing
the California Unruh Civil Rights Act. This state law creates
statutory damages of $4,000 minimum per instance
(per visit) that an plaintiff encountered barriers to access at a
property or website. This has led to a vastly disproportionate
number of ADA lawsuits being filed in California. With only 12
percent of the U.S. population, California sees roughly 40 percent
of the ADA lawsuits filed. Many businesses have been sued multiple
times by different plaintiffs who actively search out targets to
sue. One notorious ADA plaintiff, Scott Johnson, has sued thousands
of businesses, sometimes multiple businesses per day, and recently
pled guilty to tax evasion related to funds obtained from ADA
litigation.
It’s time for legal reform. When a business
is sued for tens of thousands of dollars in statutory damages and
legal fees, the costs are ultimately passed on to everyone, in the
form of higher prices for goods and services. Many small businesses
simply close. If you have eaten at a restaurant or stayed at a
hotel in California, you have undoubtedly paid more due to
excessive ADA litigation and will continue to do so until reform is
implemented. Accessibility is important and should be
priority for society. But it should not be implemented at
unreasonable and unnecessary cost to everyone.
This is a complex issue that requires complex analysis, but some
top ideas for legal reform in this area are:
- Removing the statutory damages incentive in California to
prevent serial ADA plaintiffs from attempting to profit off of a
civil rights law - Requiring plaintiffs to provide notice to a business and an
opportunity to fix the issue before filing a lawsuit - Enforcing accessibility requirements through government
departments, rather than through private lawsuits
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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