The parking lot at Coast Auto Care & Tires isn’t a parking lot in the common usage of the term – it’s a driveway into the service bays. Therefore, there is no designated parking area set aside for spaces that are accessible to people with disabilities.
That set of circumstances has become an issue in federal court.
The civil lawsuit, filed in June in the Central District of California, U.S. District Court, against the Long Beach auto repair facility shows that 26 years after the passage of the Americans with Disabilities Act, litigation remains the way that specific issues of access for the disabled are resolved.
And in California, despite efforts to reform the system, enforcement of compliance still takes place through what one court called “serial litigation” against public agencies and private businesses. This has left public agencies, but especially business owners, footing the bill for enforcement and compliance actions.
Manuel Campos has owned Coast Auto for the past 14 years, an auto repair business at Pacific Coast Highway and Atlantic Avenue. He was recently sued for violations associated with the Americans with Disabilities Act. Upset by the suit, he said, “For someone to come over and just put something in my face . . . that’s just rotten. If there’s an issue and we can comply, let’s just do it.” (Photograph by the Business Journal’s Larry Duncan)
“It’s like you get thrown into a clothes dryer, and you’re just tumbled around, not knowing what is happening or how much it is going to cost you,” says Manuel Campos, owner of the auto repair operation at the intersection of Pacific Coast Highway and Atlantic Avenue in Central Long Beach.
“To get thrown into a lawsuit – if you’re not savvy, you can rack up some major bills.”
Under federal law, plaintiffs filing lawsuits over access for disabled persons do not receive monetary compensation for successfully suing to get a business or public entity to fix violations of the ADA. However, their attorneys can be reimbursed for legal fees incurred in pursuing such litigation. Yet California is one of a small handful of states that specifically allows for plaintiffs to receive monetary damages if they prevail in court.
That set of circumstances created, in essence, a class of professional bounty hunters – a cadre of attorneys and “professional plaintiffs” who specialize in finding and suing companies that do not comply with the ADA.
One of those law firms, Potter Handy LLP in San Diego, represents the plaintiff that has filed the complaint against Coast Auto. Partner Mark Potter, who did not return a phone call seeking comment on this case, states on his website that he has successfully litigated more than 2,000 disability cases. The website for the Center for Disability Access – a division of Potter Handy LLP – states that the attorneys for the center have been “litigating disability access cases since 1996. There is no firm that has had a bigger impact on disability access law.”
This process of finding ADA violations and correcting them by allowing members of the public and their attorneys to sue private businesses has been recognized and even endorsed to an extent by the courts. On one hand, courts have found that the system works well in forcing places of public accommodation to become ADA-compliant – and that it is indeed necessary by the political decision to put the law into place without any real public sector method of enforcement.
“For the ADA to yield its promise of equal access for the disabled, it may indeed be necessary and desirable for committed individuals to bring serial litigation advancing the time when public accommodations will be compliant with the ADA,” the United States Court of Appeals Ninth Circuit ruled in a pair of cases at the end of the last decade.
But the court also warned that the serial litigation method of enforcing compliance had its own dangers – specifically, the danger of litigation that was brought not to bring about compliance but to harass a defendant. Frightened of fighting an open-ended legal battle, small businesses often settle ADA litigation out of court by fixing the violation and paying attorney costs, which can escalate quickly into five figures.
That concern led to state legislators revising the California codes regulating the awards for ADA compliance litigation. In 2012, Senate Bill 1186 expanded the universe of defendants who, upon being served with an ADA violations lawsuit, can immediately petition the court for a stay of proceedings and an early evaluation conference for the litigation. And the bill allows the court to reduce the monetary award for plaintiffs if the violation is corrected in a short period of time, which varies based on the defendant.
The change had to be done to slow the “serial litigation” process, says former Long Beach City Councilmember Evan Braude, the lawyer representing Campos’ company.
“There were just so many of these suits being filed,” Braude says. “The plaintiffs were the same in many, many cases.”
There are a few things businesses can do to limit their exposure to an ADA violation lawsuit, Braude says. The first is to make sure that the business complies with the law. There are simple things that can and must be done under the law – installation of hand rails and wheelchair-accessible sinks in restrooms, for example – that business owners can do on their own, inexpensively.
Establishing clearly-visible, accessible parking spaces is another, because “that’s the one they see from outside. It makes the plaintiff wonder what other violations are inside,” Braude says.
Additionally, businesses can hire a certified access specialist (CASp) to inspect the property. The inspector, certified by the state, can point out violations, certify that a building is in compliance, or opine that removal of a barrier to access is not “readily achievable, i.e., easily accomplishable and able to be carried out without much difficulty or expense,” as the U.S. Department of Justice states. While such a report may offer some protection in the event of a lawsuit, the inspections are not cheap, Braude says.
The thing that bugs Campos the most is that he wasn’t asked to fix the violations before he was sued, he says.
“Why not just go to the business and say, why don’t you make it so I can visit your business? Most places would. I would have,” Campos says. “I don’t have any problem complying with the law.
“I’ve been in business for 14 years. I’ve always bent over backwards to be the best business I can for my customers, number one, and to be a good steward of my neighborhood. For someone to come over and just put something in my face . . . that’s just rotten. If there’s an issue and we can comply, let’s just do it.”