San Jose Downtown Association CEO Alex Stettinski wrote an op-ed published in San Jose Spotlight. Stettinski affirms that the association supports the Americans with Disabilities Act to ensure non-compliant spaces are compliant. However, they don’t support lawsuits with the “sole intention to financially benefit from it.”
“San Jose’s small businesses have encountered way too many of these lawsuits, initiated by a handful of law offices that do not have the well-being of our community in mind, but are focused on getting ‘settlement’ money to enrich themselves,” Stettinski writes. “These frivolous ADA-related lawsuits are targeting small businesses for every penny they have.”
Stettinski goes on to reveal lawyers file 30 to 40 “boilerplate lawsuits” per day against small businesses in California. Many are in marginalized communities, affect minority-owned businesses, or both. He pushed for passing Senate Bill 585, which would give businesses with 50 employees or fewer a “time to fix” period.
Michele Mashburn, a San Jose resident and disability advocate, wrote a reply to Stettinki’s op-ed saying that the litigation process is tiresome and prefers education for fixing accessibility barriers. However, that has not been enough. Mashburn reinforces the need for businesses to consider accessibility from the start during planning and involve people with disabilities in the process.
Mashburn emphasizes the importance of providing businesses with resources and support to speed the process. They need to focus on proactive measures, which include educational programs, financial incentives, and community engagement.
Hello, everyone. This is Thomas Logan from Equal Entry here with Ken Nakata of Converge Accessibility. In this episode of AllyInsights, we’re talking about the op-ed that came from California, talking about the concern of frivolous accessibility lawsuits and their impact on small businesses. And we’re also going to be looking at a citizen response to this proposed new law.
Time-to-Fix Period
Thomas Logan: So this is all about a request for a time-to-fix period to be introduced into California law. So Ken, could you give us an idea of what a time-to-fix period is and what that means?
Ken Nakata: Sure, this is a recurring issue in the ADA and in accessibility laws. Where businesses want to have a time-to-fix after they get a demand letter so they can go and fix the problem and not incur any damages and only if they exceed that time-to-fix period would they be subject to actually any damages or attorney’s fees.
Thomas Logan: I found an example in the article that Cesar Pascal, he was the owner of a San Jose Mexican restaurant, he got hit with a disability lawsuit about six years ago. And he’s saying that he spent about $17,000 to settle the lawsuit. Sounds like a lot of money to me. What do you think about that price?
Ken Nakata: That sounds pretty typical in California. That’s just the way litigation works, unfortunately. I was just working on a case where it was a web accessibility case and it’s another serial plaintiff, but in order to make him go away, it’s going to cost about three times that much money. So, it all depends.
Thomas Logan: And I think the whole idea here of introducing this time-to-fix period, it’s a request coming to a local chamber of commerce, San Jose-based downtown business association, but it also would be a law going California-wide is my understanding of what’s being proposed. And it sounds like the proposal would be 120 days to correct an alleged violation.
For example, if you’re told that you don’t have a ramp, then you would have 120 days to remedy that.
Ken Nakata: Yeah, exactly. They would have 120 days to fix the problem. And if they fixed the problem in that time period, then they wouldn’t have to pay any damages or any attorney’s fees to get rid of the problem.
Thomas Logan: Without this law changing, then you would be on the hook if you received this demand letter immediately.
Ken Nakata: Yeah, a California business would ordinarily be immediately subject to some sort of damages, unless they prevailed. So, if it was really frivolous and they ended up in litigation, then they could actually win back all of their fees.
But, chances of that happening are pretty unlikely, because there probably is a barrier in the facility. And the plaintiff probably did encounter that barrier. And it needed to be resolved. So, they’re already immediately looking at paying out some money in order to make that plaintiff go away.
Thomas Logan: I think your point too is that at this point in the physical world and thinking about Americans with Disabilities Act, it’s not something that people should be surprised by. This has been a known thing for many, many, many years.
Physical ADA Vs. Digital ADA
Ken Nakata: Exactly. The ADA’s been around since 1990, so that’s 34 years now. And businesses are pretty well on notice that physical accessibility is one of those basic things that businesses should be worried about. And if they claim that there’s just blindsided by an accessibility lawsuit against them, I think that’s a little bit deceptive for lack of a better word, because it’s disingenuous because they should have known by now that they should have their facility checked to make sure that it’s actually physically accessible.
And I draw a distinction between this and, web accessibility cases because web accessibility is a relatively new thing and businesses really don’t know that websites have to be accessible. And so, if they ask their web developer to create a website for them they don’t think that there’s gonna be any problem for accessibility, because it’s not a big issue. It’s not a big issue in terms of their awareness. It’s obviously a big issue in the disability community. This kind of waiting period laws, I’m really not a fan of.
Even though I understand why businesses would want it. But, it’s, in the web accessibility world, I think it actually makes more sense. There’s less push for that for some strange reason.
Thomas Logan: In the web accessibility world, a 120 days, it could be a totally new website after 120 days of notice, but that’s a whole other discussion topic for another time.
Back to the case at hand in San Jose, I think it was interesting to note that there was an op-ed from Michele Mashburn, who is a San Jose resident and disability advocate, equity, and inclusion consultant trainer. She mentioned that as a resident of San Jose, she’s against this time-to-fix period because pretty much for those exact reasons, the expectation is as a person with a disability living in the community, want to be able to access the goods and services in that community.
Certified Access Specialist (CASp)
Thomas Logan: She mentioned two interesting programs in San Jose that show a different way of addressing the issue. there is a idea of something called a Certified Access Specialist, a CASp property inspection. So these are people that can assess whether or not you are in compliance with the ADA.
And there’s also now a grant program called the Disability Access Improvement Grant Program, where you can apply to receive funding, both to have your inspection and potentially to make modifications. So what are your thoughts on those types of programs in cities?
Ken Nakata: Oh, obviously I’m in favor of them. California is an interesting place because they have very rigid accessibility codes and they actually go beyond a lot of the nationwide accessibility standards. And so in California, you actually have these, certified accessibility specialists that you don’t have in other states. So getting a CASp Professional to come and actually evaluate your site is a fantastic idea.
If I were a small business owner that had a bricks and mortar shop in California, that’s probably one of the first things I would do. In fact, I’d probably do that before I ever even bought a property, is to have that done. The problem is that people don’t know that that’s something that’s available. So there’s education around having to get people to know that those resources are available and then as far as the funding is concerned, yeah, it makes perfect sense that you want to have a state fund for helping to defray the costs of making things accessible.
Presumably, you only have to do that once in the facility. So if you ever move, then the next person who gets that facility is going to, those benefits are going to also near to their benefit. I also think that there’s some federal tax credits or deductions that are available for when you’re making those kinds of changes for a business.
There are plenty of resources out there. And again, that’s another reason why it doesn’t make sense to have these time to wait or time to file, legislation.
Thomas Logan: I would note too, I know a lot of our audience is coming from the digital world, but I wanted to point out it’s pretty interesting to see the list of certified access specialists. As Ken mentioned, this is unique to California. It looks like there’s over 900 people that have this ability to perform the audits.
And it is something interesting. I think to look at and learn from just even for thinking about digital to see that the state maintains a resource of people approved to perform these inspections and to your point, people need to go and find out that this resource is here. But obviously, with over 900 people available to do this work, it looks to be lots of options to have the testing performed.
So I think that’s great, too. That’s a resource and maybe something to learn from for digital.
Ken Nakata: Yeah, I think that Texas is also doing something somewhat similar to that. So, there are different initiatives around the country. California seems to be where so many of the lawsuits are happening that I think that this kind of program in California makes even more sense.
Thomas Logan: We’d love to hear from you. What did you think of time to wait or time to fix periods and notifications? Please add your comments and we’ll be happy to respond. Thank you so much for your time and we will see you in our next episode.
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