Half-a-dozen local businesses have been hit with lawsuits filed by an Arizona man alleging violations of the Americans with Disabilities Act — claims he’s made more than 200 times against other businesses in California.
Robert McCarthy — an ex-convict whose crimes include assuming his brother’s identity and possessing child pornography — is one of several “serial litigants” who are taking California businesses to court over ADA violations.
As Tribune writer Patrick S. Pemberton reported last weekend, California is particularly vulnerable to ADA lawsuits, since unlike other states, California allows plaintiffs to seek up to $4,000 per violation. Such lawsuits usually settle, but can wind up costing defendants tens of thousands of dollars.
We have no sympathy for businesses that willfully ignore ADA requirements by failing to remove barriers to access. They should be held accountable and, if it requires a lawsuit to do so, so be it.
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However, we find it unconscionable when “drive-by” ADA litigants pounce on small, unsuspecting businesses by deliberately seeking out even the smallest violation — such as a faded handicapped parking logo — in an effort to make money.
It’s grossly unfair to businesses, and it also does a huge disservice to those legitimately interested in curing ADA violations — not out of self-interest but to ensure that disabled people have access to businesses, schools, offices and other facilities, public and private.
There has been an attempt to rein in greedy ADA litigants; legislation passed in 2012 reduces the amount of damages plaintiffs can seek under certain, limited circumstances and prohibits prelitigation “demand letters” that seek money in exchange for not filing a lawsuit, among other changes. However, some legal experts say those reforms have had little effect and, in some cases, have made matters worse. For example, some claim the “demand letters” helped prevent lawsuits, thereby reducing the cost to defendants.
Legislators are trying again. As Pemberton reported, a bill in the Senate Judiciary Committee would give small businesses a break by exempting them from having to pay damages, if they correct violations within 120 days. However, they still would be responsible for paying attorneys fees.
That’s a start. We’re concerned, though, that 120 days isn’t much time if major changes are required. And given the many caveats in the legislation, we question how effective it will be in actually curbing lawsuits.
Ultimately, the best course for businesses is to be proactive in preventing lawsuits by ensuring their properties comply with ADA requirements. The California Commission on Disability Access — http://www.ccda.ca.gov — is a good place to start.