Small businesses in Arizona are under siege as of late, enduring a slew of Americans Disability Act (ADA) lawsuits brought on by trial attorney sharks and serial plaintiffs.
The ADA is a relatively new civil liberties law which requires businesses make “reasonable accommodations” in both employment practices and physical public accessibility to individuals with disabilities. The ADA was passed in 1992 and includes provisions for new construction as well as modifications to existing structures if those modifications are not “unduly burdensome.” These rules are so technical in nature there are over 100 specifications in a bathroom alone in order to meet the standards.
Given the newness of the law and the hundreds of ways in which to be even slightly out of compliance, small businesses are especially ripe targets for litigation. Within Scottsdale, Phoenix, Mesa, Chandler and Gilbert, almost 1,000 lawsuits have been filed against businesses over the past six months. Many of these cases wind up not going to court but instead businesses pay a settlement check to the plaintiffs.
The organization behind the suits, Advocates for Individuals with Disabilities, look for any violation; including parking lot signage, hotels without pool lifts, and bathroom toilet paper dispensers that are hung even an inch below the required height. Partnered with the same couple plaintiffs who in most cases do not even visit the specific facilities, AID has sent tens of thousands of letters to businesses in the valley threatening suit and forcing inspections.
This is an ongoing problem and endemic in states such as California that represent a shocking 40 percent of all ADA lawsuits and yet only 12 percent of the nation’s disabled population. California law is especially punitive as it allows every ADA violation, no matter the severity, to be subject to penalty and allows the plaintiff to collect $4,000 in damages plus attorney fees.
California seems to be the hotbed for the country’s trial lawyers’ schemes. This year The American Association for Justice (an organization for trial lawyers) holds their annual convention in Los Angeles where attorneys will plot as to how they can manipulate the legal system to get rich off small and big businesses.
Like so many political and legal plagues of California, these tactics have spilled over into Arizona and now threaten the very livelihood of our small businesses and harm our economy. As evidenced by a series of lawsuits filed by an Arizona woman against over 30 hotels in Coachella Valley at which she seemingly never intended to stay. It is clear these suits are not about compliance as much as they are about trial lawyers getting a quick dollar from as many well-intentioned businesses as possible.
In an effort to curb this litigious abuse, a Republican United States Representative from California Ken Calvert, has sponsored federal legislation to give businesses 120 days to correct any ADA violation before a lawsuit may be filed. This would put the onus on the person who claims to be aggrieved to notify the business of the specific violations and allow the business time to respond, investigate, and if required comply.
If passed, this legislation would mirror the ADA guidelines for employment opportunity. Currently, businesses are encouraged to have a dialogue with persons with disabilities who are either interviewing or employed with the business, in order to make reasonable and necessary accommodations. This is a civil approach that promotes an equal and fair work environment while affording businesses time, predictability, and a way to curb excessive costs. The “ACCESS” legislation is a common sense approach that respects the business owners’ rights, honors the spirit of the law and improves accessibility, and discourages the frivolous congestion of our states’ courts.