AMA Lawsuit Abuse Is Closing Small Business

by Martyn B. Hopper

Like similar discussions on whether or not to close an under-used library or an unstrategically located fire station, bring up making badly needed modifications to the American With Disabilities Act (ADA) and prepare yourself for the wrath of the many whose politics are informed solely by their vaporous passions.

Senate Bill 855, cautiously stepping its way through the political minefield in the California Legislature, aims to address a consequence never intended by the bipartisan passage of the federal American With Disabilities Act in 1991, and that is to remove the shameless pimping of it by shakedown-lawyers and activists for their own financial or fame-seeking benefits.

This month's issue of Fortune Small Business tells two sad stories of California small business owners that perfectly encapsulate the scandal being perpetrated on the ADA:

“Dave Mock was hit too -- and harder. The owner of Mock Bros., a saddle maker in Yucca Valley, Calif., was sued for several alleged ADA violations, including a counter that was too high to be accessible for disabled customers. When lawyers’ fees hit $27,000, Mock settled and paid $4,000 in damages. But that wasn’t the end of it. To address his ADA violations, he would have to make at least another $20,000 in renovations. Instead he shut down his store this past December and sold the property. The great irony: Mock Bros. was founded in 1941 by Archie Mock, Dave’s uncle, a paraplegic who is now deceased. Closing the family business, Dave says, quietly, ‘was just devastating.’

“George Leage owns three restaurants in Morro Bay, Calif., which were sued in rapid succession by frequent filer Jarek Molski. Leage says he has credit card slips that show that Molski visited his Harbor Hut restaurant at 4:20 p.m. on June 16, 2003, then dropped by the Great American Fish Company at 6:27 p.m. Two weeks later Molski, who uses a wheelchair, filed suits against all three restaurants, citing ADA violations in their

bathrooms. He alleged that he injured himself -- not once, but in each of the three bathrooms. It turns out that Molski, 34, is notorious for filing hundreds of ADA suits throughout California.

A federal judge recently deemed him a ‘vexatious litigant’ responsible for a “scheme of systematic extortion.”

Removal of barriers for our fellow Americans with disabilities is a universally laudable goal. But while the theory behind the ADA’s barrier removal sounds simple -- removal of barriers where the removal is “easily accomplishable without much difficulty or expense” -- the reality is that barrier removal is both difficult and expensive because of the conflicting opinions of what constitutes a barrier, the lack of useful guidance on what kind of barrier removal is readily achievable, and discrepancies between laws.

Or, as the same Fortune Small Business article put it, "With no inspectors making the rounds of small businesses to issue warnings to those that aren’t complying, it’s up to entrepreneurs to stay abreast of how the broadly written statute is interpreted in courts around the country.”

Enter Senate Bill 855. State laws are co-codifiers of the federal ADA. Quite simply, SB 855 would require three steps to resolving an ADA problem. First, before a lawsuit could be filed, an aggrieved party would be required to provide a specified notice of an ADA violation to the owner of the property, agent, or other responsible party. Second, the owner would be required to respond within 30 days with a description of the improvements to be made, or to rebut the allegations. Third, if the owner chooses to fix the problem, he or she would have 120 days to do so.

There is little more Californians despise than frivolous, shakedown lawsuits that have no other aim than to make a few people rich. A case in point is Proposition 64 from last November’s election when 60 percent of California voters chose to place reasonable limits on the widely abused Unfair Competition Law. Much like Proposition 64, Senator Charles Poochigian’s SB 855 protects the interests of individuals who have suffered actual harm, allowing them to file suit quickly, but it would require those who have not been harmed to provide notice and allow the business owner to fix the alleged violation.

Martyn B. Hopper is California State Director for National Federation of Independent Bus-iness.

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