The Future of Access In CA

There seems to be a change in the tide as far as access is concerned in the Golden State. At one time I felt the tourism industry had a pretty proactive attitude about access. OK, don’t get me wrong, it’s not like everything was accessible, but for the most part even small businesses tried to make an effort. No, it wasn’t perfect, but what is?

Well then came an era of drive-by ADA lawsuits.

For those of you unfamiliar with the term, a drive-by is pretty much a shotgrun approach to minor access violations. In most cases an advocate pairs up with an attorney and then files a massive number (in some cases thousands) of lawsuits. The plaintiff then asks for a settlement (usually in the area of about $10K) in lieu of going to court. In most cases the business pays this amount because it’s just cheaper than a lengthy court battle. In the end, the plaintiff splits the settlement with the attorney, but in most cases the attorney gets the lion’s share of it all.

I should note, that in most cases drive-bys are more about financial gain for the plaintiffs, rather than actually fixing access violations. The name “drive-by” comes from the fact that sometimes the plaintiff just drives-by (and maybe has a look at the parking lot of entrance) and isn’t really a customer or patron of the establishment. That’s how they are able to file so many lawsuits.

Enter the hospitality industry’s response to the increasing number of drive-by lawsuits; the “Opportunity to Repair Act of 2006”, an initiative which will most likely appear on the Nov. 2006 ballot. The basic premise behind this proposed legislation is that before you take a business to court for an alleged ADA violation, you will first have to inform them of the violation in writing and then give them 30 days to fix it.

Supporters of this legislation have a few months to gather signatures for inclusion on the ballot, but I think they will manage to do it. After all, we’ve had much stranger things than that on our ballot. (Arnie, being at the top of the list!)

Opponents of this initiative claim it will tie the hands of PWDs who want to file an ADA complaint. They also note that since that ADA has been in effect for some 15 years, businesses have had “ample notice” to comply with the law.

Supporters of the initiative say that the ADA was never intended as a way for some people to make a living, and that’s exactly what is happening. Lawyers are getting rich and access violations are not being corrected. I have to add that even my lawyer looks down on attorneys that do drive-bys.

Who knows how it will all turn out. I expect even if it’s passed by voters it will be challenged on a Federal and State level. And with the “new” Supreme court, well, anything is possible. And of course if CA passes this law and it holds up to the judicial challenges, I look for other states to follow suit.

It will be an interesting election year. I also expect to see a lot of mud slinging during the campaign. But then, that’s pretty much par for the course in CA!