By RICHARD D. ROTH (Contributing Writer) | The Press-Enterprise
Lee Ky, owner of Doughnuts to Go in the small town of Reedley, California, thought it was just another work day when she was unexpectedly sued for violating the Americans with Disabilities Act. Born with cerebral palsy, Ky has been confined to a wheelchair all her life, and accessibility had never been an issue for her at work. So how could she be sued? As Ky read the list of alleged violations, she learned almost all of them were technical. For instance, a restroom sign was in the shape of a triangle instead of a square.
Ky never intended to deny access to any of her customers, especially given that she knew firsthand what it’s like to live and work with a disability. Had Ky known she was technically violating the law, she would have taken immediate corrective action. But the law firm that filed the action against her, as well as scores of other small businesses throughout California, gave no warning.
To cover the $10,000 in fines, legal bills and fix-it costs, Ky was forced to raise the price of her donuts and coffee.
Many other small businesses hit with ADA lawsuits in California haven’t been so lucky. Stories abound throughout our region and elsewhere of struggling businesses that have had to permanently close because of costly ADA claims and lawsuits with no opportunity to actually correct violations.
In 1990, President George H.W. Bush signed the ADA into law. At the time, he and many others recognized that a majority of public facilities were inaccessible to the disabled and sought to require businesses to remove barriers and provide access to all. It was clearly the right thing to do. I am certain, however, that they did not envision the impact of the ADA on small business owners like Lee Ky.
While Washington and Sacramento have been good at creating new ADA enforcement rules, they’ve not been so good at educating and training business owners like Lee Ky on what to do and how to do it. Is that the right approach? Certainly not.
So how do we ensure that a landmark law to protect the disabled is honored while also giving small businesses a fair chance to undertake ADA-mandated improvements, without fear of being forced out of business?
It is clear that we must do something, and that’s why I’ve proposed Senate Bill 251. SB251 provides small business owners with tax incentives to fix ADA compliance issues before they turn into legal fights. SB251 will also allow any business owner who proactively has a certified ADA access specialist inspect their business 90 days from the date of inspection to fix any issues without fear of statutory penalties. Additionally, SB251 allows small businesses a 15-day window to correct issues such as interior and outdoor signage and the color and condition of parking lot stripes. Local governments are required to expedite any permitting required to complete those fixes.
No one, small business included, should get a pass for blatantly avoiding compliance with the law. That’s why SB251 still holds businesses liable for damages arising from physical injury. But no business should be punished for not having the resources to do the right thing, especially when they are making a proactive effort to comply with complicated and often changing disability access regulations. Frankly, if you’re working hard to do it right, then you should have a chance to make it right.
California often prides itself for “leading the way” when it comes to social, technological and legal innovations. In the area of ADA lawsuits, California has indeed led the way with more actions filed against small businesses than Texas, Florida, Pennsylvania and New York combined. Many of these claims do not even result in improved access. In some cases, they’ve forced small businesses to permanently shut down.
SB251 is a commonsense approach that encourages and incentivizes ADA compliance while protecting our region’s recovering economy and helping to ensure equal access for all.
Richard D. Roth is a retired two star Air Force general and state senator representing the 31st District.