Business community offers solutions to litigation issues




Part 2 of a series

With an increasing number of Ventura County business owners facing expensive accessibility lawsuits, local officials are speaking out about the need to balance equal access for people with disabilities with the need to provide owners an opportunity to remedy site violations before costly fees are incurred.

“I’m a wheelchair user, and I get that there are challenges to accessibility everywhere and it makes me very sad that it’s become such a litigious issue,” said Dani Anderson, the County of Ventura’s disability access manager.

In her role, Anderson oversees and works to improve the county’s accessibility efforts

“I understand both sides of it and I hope that with state legislation and things moving in the right direction, we can figure out a way to make it more feasible for businesses to be accessible,” Anderson said.

Moorpark business owner Daniel Groff faced an Americans with Disabilities Act noncompliance lawsuit in 2020. Thousand Oaks property owner Steven Kasten faced three last year. They both chose to settle out of court to avoid paying even more in attorney’s fees.

Groff and Kasten believe that the most helpful solution for business owners would be a grace period to repair violations before they could be sued.

Joseph Manning of Orange County based Manning Law does not believe such a grace period is warranted. Manning frequently represents Anthony Bouyer—a California resident and paraplegic who filed the lawsuits against both Groff and Kasten and has filed roughly 60 lawsuits in Ventura County Superior Court this year.

“With the law unchanged for the last 33 years, I do not think lack of advance notice is the main obstacle to compliance,” Manning said.

One of the problems with keeping in compliance, however, is that the law does change periodically, others said. Unless one is an expert in the area, it’s hard to keep up.

Anderson, among others, cited experts, called certified access specialists, as the best resource currently available for property owners and tenants.

Commonly referred to as CASps, certified access specialists are experts on the application of state and federal construction accessibility standards. The professionals inspect properties for noncompliance, provide a report with violations and how to correct them, and create a schedule for repairs.

Though California owners and tenants are not legally mandated to hire a CASp to inspect their site, those who do can be eligible for “qualified defendants” status if a construction-related accessibility claim is later filed.

This means that once sued, qualified defendants could have up to 120 days to address alleged violations in order to reduce statutory damages from $4,000 to $1,000 per violation. They could also receive a 90-day stay of court proceeding.

Hiring CASps after the fact disqualifies businesses from receiving the legal benefits.

“The sure-fire way to avoid such a lawsuit is to make your property accessible,” Manning said. “In part because of the efforts of advocates like Mr. Bouyer, state programs like the Certified Access Specialist program have made achieving accessibility as defined by the ADA relatively straightforward for property owners.”

Groff, also a Moorpark council member, said cities unfortunately don’t have the ability to protect small businesses.

Thousand Oaks Councilmember Kevin McNamee recently requested that city staff explore resources for local business owners to ensure they are compliant.

“The spirit of the law is to be welcoming to people with disabilities but the letter of the law is not doing that,” said McNamee, whose own small business in Canoga Park faced a costly ADA lawsuit a decade ago. “I have an issue with business owners being responsible for knowing what issues are changing without recourse.”

The City of Thousand Oaks is now collaborating with the Greater Conejo Valley Chamber of Commerce to distribute information about the most common violations to owners.

The Chamber, according to CEO Danielle Borja, is also scheduling a virtual workshop to further educate businesses on the topic.

“The better our businesses are educated in this space, the better off we’re all going to be,” she said.

For businesses in the unincorporated areas, Anderson said the County of Ventura’s resource management agency is available to answer questions about accessibility.

Business advocates say the best and most fair solution, however, is to allow time for owners to fix violations once they’ve been notified.

“If the ultimate purpose is to get the violation fixed, the priority should be providing a window of opportunity to make that fix for the disability access; it shouldn’t be to extort the business out of money,” Borja said.

“There really needs to be some legislation at the state level to not allow someone to take advantage of businesses in this way,” Borja said.

As ADA lawsuits increasingly impact small businesses, she said the local organization is asking elected officials and the California Chamber of Commerce to take action.

Some state legislators have tried. Senate Bill 585, introduced by state Sen. Roger Niello (R-Fair Oaks), would have given businesses with less than 50 employees 120 days to correct ADA violations before they could face penalties, including lawsuits. It’s stalled in the Assembly Judiciary Committee.

A spokesperson for state Sen. Henry Stern (D-Calabasas), who was absent from voting on the bill last year, declined to comment on the topic.

Assemblymember Jacqui Irwin said in a statement to the Acorn that while SB 585 never came before her for a vote, she is supportive of any legislation that prioritizes having a business owner fix ADA deficiencies before a lawsuit can be filed.

“I have heard from many small business owners in my district who have been targeted with disability access lawsuits filed by a single plaintiff,” she said.

“Instead of focusing on working with owners to increase disability access and honor the intent of the ADA, this plaintiff has turned the law into their personal ATM,” Irwin said. “This has left less money, not more, for wheelchair ramps, automated doors and accessible restrooms.”

This is Part 2 of a two-part series on ADA-related lawsuits. To read Part 1 go to simivalleyacorn.com/articles/ada-litigation-on-the-rise-incounty/