Civil Rights and Senator Cathleen Galgiani?

April 30, 2015

Senator Cathleen Galgiani

Capitol Office

Attention: Judiciary Committee Staff

State Capitol, Room 2059

Sacramento, CA 95814

P: (916) 651-4005

F: (916) 651-4905

RE:  OPPOSITION AND/OR AMENDMENT TO SUPPORT SB 67

Dear Senator:

This letter provides a step-by-step review of the most relevant sections of SB 67.  The SB 67 does not contain a purpose.  However, by reading the bill as a whole, UAAAC has determined that the purpose is to stop ADA lawsuits.  The reason for this deduction is because by requiring written notice and allowing the businesses to correct the violation, the lawyer will not need to file the lawsuits. However, as noted below, the ADA lawsuits will continue because the California legislature only has the power to reduce or to eliminate statutory damages but it does not have the power to stop the lawyers from filing ADA lawsuits.  This letter does not explain why SB 67 may violate the rights of people with disabilities. This letter focuses on what could be the practical approach of SB 67.  The outcome will not achieve the purposes of the author of SB 67.  The constituents of the author will quickly become dissatisfied with the outcome of SB67 and will become dissatisfied with the author.

UAAAC ANALYSIS OF SB 67

A. Minor changes are made to SB 1608 and SB 1186 as to the application for a stay and to set an early evaluation conference program. See Section 1, pp 1-14.  UAAAC opposes the entire program and has filed a federal lawsuit and a preliminary injunction to stop the program. See UAAAC v. Buttonwood Investment Group, L. P., U.S. District Court, Southern District of California, Case Number 15cv00113-JM-WVG.

B. Section 2(a-e) are not opposed or supported by UAAAC.

C. Plaintiff's damages will be reduced to $1,000 if the business corrects the violations within 120 days of receiving the complaint and the property had a certified inspection, a certified inspection is pending or the improvement was approved by a building inspector. See Section 2(f)(1)(A-D)  UAAAC opposes. For a second let us assume that statutory damages are not allowed at all, the ADA suits will continue.  So reducing damages will not stop ADA suits.

D. A plaintiff will not be able to recover any statutory damages against a small business. See Section 2(f(2)(A-B). UAAAC opposes for the reasons already stated as to this section. Also, the California Legislators must understand that this section will spawn more litigation, thereby, hurt small businesses. Honestly, Shakespeare was correct that lawyers search for fees. In America the client pays her lawyer fees. There are two exceptions to the American Rule: Contingent Fees and Attorneys' Fee Shifting Provisions. Large law firms use the America Rule and search from large corporate clients with multiple legal issues so that the firm can maximize billable hours. Lawyers using the contingent fee method in their hunt for fees select large damage cases and run multiple small damage cases. The multiple small cases are needed for the monthly bills. No damage cases are rejected. The lawyer gathering fees using the fee shifting method select employment or class action cases. In 1968 the Disabled Persons Act was passed but it was not enforced. So, between 1970 and 1992, the California Legislature added an attorneys' fee shifting section to DPA and increased statutory damages several times as incentives to promote private enforcement of DPA. However, these incentives failed. In 1995 a young lawyer with cerebral palsy combined the multiple small damages cases method with the fee shifting concept to create an access law business model. The model required the filing multiple access cases and settling for less than $20,000 and for access corrections. Other lawyers adopted this business model and forced businesses like Shell, KFC, McDonalds, Public Storage and many more to comply with the access laws. Also, the access law business model allowed the lawyers to sustain their practices and families by earning fees.  Like any other business, access firm have breakeven fee amounts - fees that keep the door open and support their personal standard of living. The business model is based on ADA remedies of injunctive relief and attorneys' fees. Without damages the breakeven fee amount must be higher to account for nominal damages. Nominal damages compensate a person for vindication of a legal right if there are no actual damages. Also, without statutory damages intentional claims will be alleged based upon the knowledge to a substantial certainty test. The allegation will go like this: "ABC store knew about the ADA requirements by gaining it by personal inquiry or by learning it from others. Thus, ABC knew it had to find out what ADA improvements had to be done at the store.  Accordingly, ABC is liable for intentional infliction of emotional distress or negligent infliction of emotional distress." In this case a plaintiff must prove intent and emotional distress. Both sides must take depositions to prove or disprove intent and emotional distress. This only makes it easier for the defense attorney to bill the small business more fees and helps the plaintiff's attorney reach his or her breakeven fee amount before serious settlement talks are considered.  In the end without statutory damages, the defense and plaintiff lawyers will litigate more, the small business will pay more and the plaintiff will receive less.

Finally, SB 67 assumes positive incentive measures will work better than coercive measures. The positive SB 67 incentive measure is reducing or eliminating statutory damages will reduce litigation and promote accessibility. However, many justice systems through history have learned these positive reward methods do not encourage people to comply with laws. This is why all justice systems used coercive measure to achieve compliance with laws. SB 67 attempts to reduce coercive lawsuits by reducing statutory damages. However, a state cannot expect to achieve compliance with laws by replacing coercive measures with positive rewards for compliance. Instead the coercive measure must be replaced by an equal or more severe coercive measure. For example, the State can require all

businesses to comply with the access laws by January 1, 2017 or pay $70,000. If said amount is not paid in 30 days then the business must closed until access compliance is certified. This coercive method will work but it will never pass as a law. The other effective coercive method is attorney general enforcement by providing $300 million in funds for access enforcement. However, in this scenario the government will be hated, not the private lawyers. This will not happen.

So if SB 67 is not the answer for a Senator looking to help businesses in his or her District stop ADA lawsuits, what is the answer?  The answer is direct instruction by phone, video chat or in person with each business in the district for 3 hours.  The direct instruction will be performed by district staff for free and will be provide step by step instructions on how that particular business can comply with the ADA in 30 days. After the direct instruction is provided, staff will contact the business in 45 days to verify that access compliance was achieved. If access compliance was not achieved the staff will take no further action.  In the event the business is sued, the Senator can be assured he or she used best efforts to help the business before it was sued.

CC:  

JUDICIARY COMMITTEE

Tel: (916) 651-4113

Fax: (916) 403-7394

Email: sjud.fax@sen.ca.gov

SENATOR HANNAH-BETH JACKSON,

JUDICIARY COMMITTEE CHAIR

SENATOR JOHN M.W.MOORLACH,

JUDICIARY COMMITTEE VICE CHAIR

SENATOR JOEL ANDERSON,

SENATOR ROBERT M. HERTZBERG,

SENATOR MARK LENO,

SENATOR BILL MONNING,

SENATOR BOB WIECKOWSKI,

JUDICIARY COMMITTEE MEMBERS

         

Civil Rights... Where are they now?? SB 251

This post provides a step-by-step review of the most relevant sections of SB 251.  The SB 251 does not contain a purpose.  However, by reading the bill as a whole, UAAAC has determined that the purpose is to stop ADA lawsuits.  The reason for this deduction is because by requiring written notice and allowing the businesses to correct the violation, the lawyer will not need to file the lawsuits. However, as noted below, the ADA lawsuits will continue because the California legislature only has the power to reduce or to eliminate statutory damages but it does not have the power to stop the lawyers from filing ADA lawsuits.  This post does not explain why SB 251 may violate the rights of people with disabilities. This post focuses on what could be the practical approach of SB 251.  The outcome will not achieve the purposes of the author of SB 251.  The constituents of the author will quickly become dissatisfied with the outcome of SB 251 and will become dissatisfied with the author. 

UAAAC ANALYSIS OF SB 251

A. A person must give written notice before filing a barrier lawsuit. See amendment 7, Section 2(a). UAAAC opposes.  For the purposes of this analysis, we ignore the fact this section may violate the U.S. Constitution. Instead we focus on if written will stop ADA suits. What would be the practical effect of SB 251?  First, a lawyer will file a state lawsuit without any damages allegations. Then he or she will serve the lawsuit with the written notice. Thereafter the defendant must answer the lawsuit and correct the violations within 30 or 90 days to reduce the damages. Further, most defendant retain counsel. A simple cost analysis will force the defendant to litigate or settle regardless of receiving written notice. Second, a lawyer files in federal court for ADA only. BOTTOM LINE: Businesses will say SB 251 failed to stop the ADA and demand that the Senate do more to stop said suits. However, the State Senate cannot stop ADA suits.

B. A business will not be liable for violating the access standards if it corrects the violations 90 days of getting the access report.  See amendment 7, Section 2(b). UAAAC opposes. For a second, let us assumed that statutory damages are not allowed at all, the ADA suits will continue. So reducing damages will not stop ADA suits.

C. If a business corrects signage, painting of a parking lot or truncated domes within 30 days of getting written notice then the business is not liable for the violations.  See amendment 7, Section 2(b)(2). UAAAC opposes. Simply stated, a lawyer will allege more substantial violations or reject the case. This section will not work.

D. Section 3 repeats existing law - Plaintiff must personally encounter a violation; or Plaintiff was deterred by the violation.  See amendment 7, Section 3(a-e). UAAAC supports.

E. Plaintiff's damages will be reduced to $1,000 if the business corrects the violations within 60 days of receiving the complaint and the property had a certified inspection, a certified inspection is pending or the improvement was approved by a building inspector.  See amendment 7, Section 3(f)(1)(A-D). UAAAC opposes for the reasons already stated as to this section.

F. A plaintiff's damages will be reduced to $2,000 if the business corrects the violation within 30 days of receiving the complaint and it shows it corrected the violations and it has less 26 employees or it has annual gross revenues of $3.5 million. See amendment 7, Section 3(f)(2)(A-B). UAAAC opposes for the reasons already stated as to this section.

G. If a micro-business corrects the violations before receiving a complaint it is not liable for any statutory damages. See amendment 7, Section 3(g).  UAAAC opposes for the reasons already stated as to this section. 

I. The owner and tenant of commercial property are both responsible for ADA compliance. The commercial must state this. See amendment 7, Section 4 UAAAC supports.

J. The certification for a certified access specialist will last 3 years. See amendment 7, Section 3. UAAAC supports.

K. Expanding the duties of the California Commission On Disability including the development of educational materials and a web site. See amendment 7, Section 6. UAAAC opposes. Why are tax payers paying for this agency? All its functions are or can be subsumed by other agencies.

L. Local governments must develop ADA materials to be provided with approval permits. See amendment 7, Section 7. UAAAC opposes. ADA information is free all over the Internet. Cities are struggling. Why should cities the costs of gathering, organizing, printing and distributing ADA information for businesses?

M. Article 4 defines terms.   UAAAC opposes all term definitions except 65946(1)(6). See amendment 7, Section 8.

N.  Provide tax credits to businesses. See amendment 7, Section 9. UAAAC opposes. Why should the State agree to allow tax credits for doing what the law has required for 40 years when the State is near broke?