October 18, 2015

Access disability threat still hangs over small business

By REED FUJII / The Stockton Record

Small businesses in San Joaquin County and the rest of California remain vulnerable to thousands of dollars in penalty and legal fees for violating disability access rules since Gov. Brown’s recent veto of an Americans with Disabilities Act reform bill.

“It’s unbelievable,” Stockton business owner Jerry Brannon said over the news. “We need some help … so we can stop the extortion of money from small business.”

Senate Bill 251, authored by Sen. Richard Roth, D-Riverside, was among nine bills targeted by Brown because they provided state tax credits.

In his veto message, the governor did not consider the specific merits of the legislation but focused on his concern the state could face $1 billion in budget cuts next year.

“Given these financial uncertainties, I cannot support providing additional tax credits that will make balancing the state’s budget even more difficult,” he said.

Roth was “extremely disappointed” with Brown’s veto, a spokesman for the senator said.

“He’s going to explore whichever way he can to move this issue forward,” said Shrujal Joseph, Roth’s press secretary.

However, despite passing the state Senate on a unanimous 40-0 vote and winning a 70-6 majority in the Assembly, no effort will be made for a veto override.

The Sacramento Bee reported last week that Senate President Pro Tem Kevin de León, D-Los Angeles, ruled out efforts seeking to override any of Brown’s vetoes, saying the Legislature would instead focus on special-session issues such as transportation and health care.

Roth or other legislators who offered similar ADA reform bills could choose to try to revive their legislation next year.

But that leaves tens of thousands of business owners across the state open to disability access lawsuits, which call for a steep penalties even if any deficiencies are quickly remedied, said Kim Stone, president of the Civil Justice Association of California.

“The only way they can protect themselves against lawsuits is to hire a certified access specialist and make themselves ADA compliant,” she said. “If you’re not fully technically compliant, then you are vulnerable to a lawsuit.”

City building and health inspectors, as a rule, do not check for ADA compliance. Business owners, not their landlords, are responsible for violations. Once sued, there is no grace period to make corrections. Penalties can be $4,000 per violation plus legal expenses.

Roth’s bill would have allowed such notice, giving small businesses 15 days upon written notice or lawsuit to correct three types of violations: ADA required signs, parking lot striping and underfoot warning surfaces.

It would also have given businesses with 100 or fewer employees 120 days from the date of an inspection by a certified access specialist to correct any ADA violations found, during which time the business would be safe from statutory penalties.

Those were relatively minor reforms, said Stone, whose group seeks to protect businesses from frivolous litigation.

“It was a pretty small step, but it was a step in the right direction,” she said. “At this stage of the game, this bill was more and better than anything that has happened in the past decade.”

Stone said she would like to see Roth bring his bill back next year, but without the tax credits. Those credits would have helped business owners offset part of the costs of ADA improvements.

Brannon would certainly like to see some sort of ADA reform.

He’s due in U.S. Federal Court in Sacramento later this month to defend himself from Scott Johnson, a Carmichael attorney who is disabled and has made a career of filing hundreds of ADA violation lawsuits.

Brannon said he thinks he might prevail, but not because he corrected the disability access violations at a business he owns. The previous owners of the property in question settled a similar ADA lawsuit from Johnson and received an agreement that he would not sue again for 36 months.

“Hopefully, we’re going to get (the latest lawsuit) thrown out,” Brannon said.


Volunteer

get updates