DATE: April 19, 2005
TO: Board of Supervisors
SUBJECT: Support for SB 855

SUMMARY:
Recently, there has been an increase in local businesses being challenged by lawsuits for their non-compliance of federal and state provisions of the Americans with Disabilities Act (ADA). In most cases, a handful of attorneys utilize a boilerplate lawsuit claiming a local business is in violation of a number of special access laws. Using aggressive lawsuits and threats, these attorneys have designed a scheme to extract financial compensation knowing small businesses may lack the resources to combat such a lawsuit in a court of law. In the end, businesses settle out of court and ultimately the only outcome is "legalized extortion."

It is important individuals with disabilities be given the absolute right to access areas of public accommodation and the chance to address legitimate ADA violations through our legal system. However, under current law, property owners are not given the ability to cure alleged violations before they are sued. Senate Bill 855 would curtail these egregious actions. SB 855 would help cease predatory ADA lawsuits by requiring a specific notice of intent to sue and allow a brief period of time where a business can rectify the ADA access problem. This bill will not weaken access but rather allow businesses a chance to address the problem.

Today's action will request a letter be prepared, to be signed by the Chairwoman of the San Diego County Board of Supervisors, stating San Diego County's vigorous support for California State Senate Bill 855.

RECOMMENDATIONS:
Supervisor Dianne Jacob:

1. Direct the Chief Administrative Officer to draft a letter for signature by the Chairwoman to members of the San Diego Delegation, the Administration, the County's Sacramento Representative and other interested parties in support of SB 855 (Poochigian), related to federal and state special access laws and shielding businesses in alleged violations of special access from frivolous lawsuits.
2. Direct the Chief Administrative Officer to include in the Board's 2005 Legislative Program support for similar Federal legislation to protect businesses from frivolous lawsuits, while maintaining the access rights of the disabled community and communicate this support to the San Diego Federal Delegation and the County's Washington, D.C. Representative.

FISCAL IMPACT:
There is no fiscal impact associated with this action

BACKGROUND:
The federal Americans with Disabilities Act (ADA) of 1990 and California's subsequent special access laws are intended to give civil rights protections and guarantees of equal opportunity for individuals with disabilities with respect to public accommodations, employment, transportation, state and local government services, and telecommunications. Under existing law, a person, firm, or corporation that violates access rights of a disabled individual is liable for the actual damages of each offense.

Recently, there has been an increase in local businesses being challenged by lawsuits for their non-compliance of federal and state provisions of the Americans with Disabilities Act (ADA). In most cases, a handful of attorneys have utilized a boilerplate lawsuit claiming a local business is in violation of a number of special access laws. Using aggressive lawsuits and threats, these attorneys have designed a scheme to extract upwards of $5,000 dollars from local business owners, knowing they may lack the resources to combat such a lawsuit in a court of law. In the end, businesses settle out of court and ultimately the only outcome is "legalized extortion."

Today, business owners do not have the privilege to correct measures before the
lawsuit is filed. Therefore most business owners regardless of the legitimacy of the complaint are electing to settle through upfront compensation in fear of substantial legal fees and possible large compensatory and punitive damage awards for ADA non-compliance.

State Senate Bill 855 (Poochigian), is aimed to establish important notice
requirements for parties to follow before bringing litigation forward against a business owner in alleged violation. The bill would require the plaintiff to provide
specified notice of violation to the owner, agent or responsible party of the
property. This advanced notice would allow the alleged party not in compliance to address the issues in any of the following three conditions:

1. State that improvements will be made to bring the premises into compliance of all special access laws. In doing so, business owners are warranted a 120-day window of opportunity to make such improvements and repairs.
2. Business owners may challenge the validity of the alleged violations, however, in most cases this would bring the lawsuit forward.
3. If the violations being presented are similar to previous allegations, or corrections have been administered in reaching compliance, you may respond with attached verification that all necessary repairs and action have been completed to bring your premises into compliance with all ADA regulations and provisions.

These special access laws are highly susceptible to abuse and frivolous lawsuits. The majority of these lawsuits are not pursued with the primary intent to have businesses become ADA compliant nor to increase the public benefit for people with disabilities. Rather, these lawsuits are creating unfortunate outcomes of "legalized extortion" and are placing an extreme burden on our courts and taxpaying citizens. In addition, these lawsuits threaten the existence of local businesses, impact local employment and decrease economic prosperity. These adverse impacts are highly damaging for local community development, which is why the California Chamber of Commerce is in support of SB 855.

The intent of Senate Bill 855 is to eliminate frivolous lawsuits brought before our local businesses, while allowing alleged violators a time frame to come into compliance with all ADA access laws. But most importantly, SB 855 continues to address the right of individuals with disabilities be given the chance to address legitimate ADA violations through our legal system, while giving protective rights to the alleged.

Given the loopholes in our ADA laws and little to zero protection for business owners, today's action will register San Diego County's vigorous support for California State Senate Bill 855. I urge your support!

Respectfully submitted,

DIANNE JACOB
Supervisor, Second District