Right of passage
It’s expensive for small businesses to comply with accessibility laws, but it’s a lot more so if they wait for advocates in wheelchairs to sue them
The Americans with Disabilities Act (ADA), which passed in 1990, has been sentimentally referred to as a victory in one of the final battles of the civil-rights movement. Outlawing one more sanctioned policy of segregation, the ADA and California’s Disabled Persons Act, which preceded it, were supposed to compel public buildings, including retail stores, resorts and restaurants, to accommodate all their customers equally. But unlike other civil-rights fights, this one asked for more than a change of attitude. It asked for a new approach to architectural design. Teams of business owners, architects, contractors and building inspectors were instantly obligated to consider the needs of people in wheelchairs whenever they built or renovated a public space. Expected to meet a complex new set of regulations, they often didn’t comply completely. In response, advocates have begun to file hundreds of local lawsuits, naming dozens of technical violations and asking for many thousands in damages—as the law intended.
“That’s how [the law] was set up by Congress,” explained Kim Blackseth, an Oakland accessibility consultant who recently has joined forces with legislators to limit the number of damage awards.
From a review of a dozen recent suits filed against a dozen different businesses, certain violations appear to be commonplace in Sacramento. In parking lots, accessible spaces are often too shallow or too narrow, or they don’t offer enough room for vans to lower wheelchairs to the ground. Signs are hung wrong or not at all, and wheelchair-accessible ramps lack safety features like “edge protection.”
In public restrooms, another common hot spot for technical violations, a few inches make the difference between lawsuits and no lawsuits. According to the ADA, grab bars must be between 33 inches and 36 inches off the floor. Toilet-paper dispensers must be hung a maximum of 36 inches from the back wall, and “mirrors shall be mounted with the bottom edge of the reflecting surface no higher than 40 in (1015 mm) above the finish floor.” Hot water pipes must be wrapped, doorknobs must be replaced with latches, doors must take no more than five pounds of pressure to open, and the restroom signs outside the door have to include the gender in Braille. In some instances, the California Building Code is more restrictive than the ADA, so contractors and architects also have to know when state law trumps federal policy.
Ignoring any of these requirements, as they’re laid out in the federal government’s 95-page handbook and a number of California guides on accessibility, potentially could get a business sued for at least $4,000, not to mention attorney fees and damages. And that doesn’t include the cost of the upgrades.
In the last few years, businesses increasingly have called for some legislative relief from lawsuits (referred to as “drive-bys” when plaintiffs don’t complain or request compliance before suing). As animosity has increased, the business community has mythologized a growing number of advocates and attorneys as accessibility vigilantes, infamous for filing hundreds of suits apiece in both state and federal courts—and claiming many thousands of dollars in damages even when they suffer no physical injury. Although business owners find these lawsuits unsportsmanlike, advocates remind them that the federal ADA is almost 15 years old. How long should businesses be allowed to flout the law?
But the debate isn’t always that simple. “Some companies think they’re complying when they’re not,” attorney David Sugden said of his clients, whose obligations are detailed in a host of federal and state laws. In addition, Blackseth warns that responsibilities differ for newly constructed buildings vs. older buildings. Sometimes, he said, lawsuits will name multiple violations when only a small number of them are accurate.
As a testament to how deep the divide between the two sides has become, business owners, off the record, have referred to drive-by suits as “extortion.” Two local businesses recently found to be compliant even refused to say so on the record. One bakery owner said she feared disabilities-rights advocates would try to sue her anyway—out of spite.
Frances Gracechild, the vivacious executive director of Resources for Independent Living Inc., has considered the increase in disability lawsuits from both sides of the debate. She feels responsible for her small nonprofit office and has had to make her own expensive upgrades to accommodate a variety of disabilities among her clients. But Gracechild also uses a wheelchair herself and has firsthand experience with dozens of Sacramento businesses that haven’t complied with the law. “There are no monsters in this situation,” she said, wheeling up to the conference table in her office, surrounded by various streamlined wheelchairs and a recumbent bike.
“I don’t think blame and shame and lawsuits are the only tools in the toolbox,” said Gracechild, who would like to see the government explore more cooperative options, like tax credits for businesses that voluntarily comply. But Gracechild quickly added that she does not support tort reform. “Lawsuits work,” she said emphatically. “A well-placed lawsuit will change behavior.”
To show an SN&R reporter how difficult noncompliance can be on people in wheelchairs, Gracechild recently rode to lunch in a van driven by her daughter, Monica Gracechild, the organization’s office manager.
The pair took the single van-accessible parking spot in front of Silvia’s Restaurant, a Nicaraguan eatery that opened in the spot of the once-popular Mum’s Gourmet Vegetarian Restaurant on Freeport Boulevard. Frances activated the van’s ramp and rolled her wheelchair safely onto the ground.
She had come specifically because the old Mum’s had been a family favorite when the Gracechilds were practicing vegetarians. Frances still remembers feeling like a hypocrite for patronizing Mum’s when it had one of the city’s tiniest, most inaccessible restrooms.
A little anxious about returning, both Gracechilds were thrilled to see two enormous new handicapped-accessible restrooms protruding into the front dining room. “Beautiful!” Frances exclaimed.
Although she wheeled through a narrow hallway and up to a table in the restaurant’s back dining room, she quickly returned to the front. She pushed open the restroom door and swung her chair inside, where there was plenty of room to wheel around. Some wheelchairs are front loading, she explained, and some side loading. What the regulations refer to quaintly as “the water closet” was positioned to easily accommodate both.
Frances also was pleased by the latched doorknobs. She balled up a fist, threw her shoulder forward and put her wrist down hard against the latch, showing how this small, inexpensive innovation accommodates even those with paralysis. She also wheeled up to the sink, demonstrating the threat of burns on the knees if hot water pipes were exposed. With no feeling in their legs, quadriplegics can suffer serious burns.
Back at her table, Frances wondered how, and on whose dime, the space had been transformed. The waitress called the current owners, the Gomezes, out to explain. The choice to accommodate disabled customers had been an expensive one and one they wouldn’t have made without inspectors warning them of future lawsuits.
In 2002, Nicaraguan immigrant Silvia Gomez, in possession of her family’s favorite recipes, leased her space after 17 years of working for local restaurateurs. The site was in a perfect spot, she thought. It had a generous outdoor deck for seating, and the landlord said that Silvia could open her doors within a couple of weeks. She and her husband, Herbert, had begun renovating the restrooms when a surprise visit from a building inspector shut them down even before Silvia opened her doors.
“We found rats and cucarachas in the kitchen,” Herbert explained as Silvia went to find “before” pictures of the enormous, but filthy, stove. The couple was warned that the building featured code violations not only in the kitchen but also in its back dining room. New bathrooms were the first priorities.
“I’d decided to make it smaller,” said Herbert, “but they said I had to make it big for the handicapped. … We lost about four tables,” he said, referring to the shrunken floor space.
Herbert estimated that the new bathrooms cost about $15,000, more than $10,000 of which the landlord provided. “We paid the rest,” Herbert explained. But that was only the beginning of the small business’s upgrades. Some of the plumbing and electrical wiring had to be replaced, as did the doors to the outside deck. Emergency exits had to be enlarged for handicapped access, and a raised portion of the floor had to be leveled for the same reason. The Gomezes also laid a wood floor laminate, added a couple of wall-mounted air conditioners and upgraded the kitchen. By the time it was over, the Gomezes were in for almost $100,000, said Silvia, about $20,000 of which was related to handicapped accessibility, and they hadn’t made a dime yet.
Herbert said he took a year off from work, brought in friends and family, refinanced the couple’s home and raided his retirement account to help renovate the building—all to Frances’ horror. But the landlord receives the benefit of all your work if you leave, she said, and Silvia and Herbert nodded.
Mark Stevenson of Parker Stevenson Brokerage Co., which owns the building, said his company contributed approximately $14,000 to the upgrades, which were extensive. “It wasn’t a simple little deal,” said Stevenson.
Silvia’s Restaurant opened for business in April 2003, but the restaurant is still struggling to regain the popularity and visibility of the old Mum’s.
“Oh, bless your heart,” Frances exclaimed. “I better start coming here three times a week, because I owe you a lot of money! Frances said she can be a bulldog when people ask for her help, but she rarely uses her clout to force businesses to change on her behalf. “I choose the ditches I’m going to die in,” she said. Not every ditch. Not every day. When things are personal, she chooses to let them slide, like the bathroom in the old Mum’s.
Frances could name, off the top of her head, a number of small businesses and franchisers who still aren’t compliant. At one vintage boutique, she said, the manager has to clear merchandize from the entrance every time Frances shows up. At a local market, the meat counter is too high for Frances to communicate with the butcher, so she no longer goes. And at a local coffee shop, Monica has had to run ahead to ask the manager to move a sandwich board out of the handicapped-accessible lane so Frances doesn’t have to wheel around an unmarked parking lot, afraid she can’t be seen by SUVs backing out.
Some days, Frances said, she wants anonymity and doesn’t want to turn on the charm and ask people for help everywhere she goes. She’s just as vain as anyone else, she said, and doesn’t like playing the victim.
Most large businesses are accessible, in Frances’ opinion, but those who bring the lawsuits don’t seem to agree, based on the large number of cases against franchisers and big retailers. Although Frances has entered into a few lawsuits, she thinks of herself as the “good cop,” the one who tries to find workable solutions. Some of her peers, however, prefer playing “bad cop.” On the roster of handicapped-accessibility advocates, certain names appear with a hint of infamy: HolLynn D’Lil launched a lawsuit against the River City Brewing Co. in the mid 1990s that eventually led to Chapter 11 for the original owners. George Louie sues wineries and other high-profile businesses and has filed approximately 250 suits in the Eastern District of the Federal Court. Lynn Hubbard III, a Chico attorney, represents some of the most litigious advocates in California; he said he’s sued perhaps 20 or 30 Sacramento businesses a year since 1998.
Hubbard came to Sacramento recently for a pretrial hearing in a case against a local Longs Drugs store. In the morning before the hearing, he toured the location on Arden Way.
Hubbard, who tends toward the bombastic, walked confidently through Longs, letting his hand hover over new renovations. Since the suit had been filed, the business had lowered a portion of its pharmacy counter and had opened up its handicapped-accessible checkout stand 24 hours a day, said Hubbard. A new sign let customers know this, but Hubbard said the sign was hung too low. Still, on a scale of 1 to 10, Hubbard said he’d give this Longs a 7 for compliance. He’d sued three or four in the past, he said, and this one had tried harder than all of them. Attorney John Barber said Longs does not comment on pending legislation.
As trial nears, a new independent expert will re-evaluate the site for compliance, since Longs denies that bathrooms, counters and parking lots don’t meet regulations. Standing in the shopping center’s parking lot, Hubbard said he’d rather work with businesses than sue them, but like other advocates, he sees lawsuits as necessary when written requests fail. Already sensitive to complaints of drive-by suits, Hubbard claimed early on that he only takes cases after his client has visited a business, documented access violations, written a letter to the business and given it four to six months to make changes. He also claimed that he doesn’t sue small businesses and that he began handling accessibility suits because he had a vested interest: His wife uses a wheelchair.
The business community suspects Hubbard and his clients bring these suits mainly because they’re so lucrative, but Hubbard says his personal salary is only between $45,000 and $60,000 a year. As a private businessman, his income is not verifiable through public records. Critics of Hubbard, including Blackseth, say that Hubbard’s claims are exaggerated and that he regularly sues franchisers, who may own only one or two locations. “He doesn’t think franchises are mom and pops,” said Blackseth.
Hubbard looked across the parking lot at a McDonald’s. Big corporations, he said, often produce their buildings in a cookie-cutter fashion, reproducing the same mistakes over and over. “If I owned that McDonald’s over there, I would have someone come out who knows the code, and I’d make the changes,” he said.
Louie, another well-known litigator, also filed cases against Longs Drugs in 2004. He was unavailable for comment because of health problems, but Kathleen Finnerty, an attorney familiar with his cases, claims that as the founder of Americans with Disabilities Advocates, Louie is “very proud of creating access in over 10,000 businesses.”
The organization’s most recent publicly accessible tax forms are from 2002, and they show an income of more than $450,000 for Louie’s company. They also show more than $450,000 in expenses, including, among other things, more than $68,000 for court filing fees, $45,000 for supplies, almost $31,000 for entertainment and more than $223,000 in attorney fees. Neither of Louie’s two most active attorneys returned phone calls for comment.
Naturwood Home Furnishings is one of the local businesses that added to the organization’s coffers in 2004. A long-established Sacramento business with three locations, including an enormous store off Highway 50 that’s adorned with a working paddlewheel, Naturwood has been family-owned and family-operated in Sacramento since 1948.
The suit against Naturwood, which Louie brought in February 2004, is one of his most well-documented. It includes 95 photos of approximately 45 infractions. One photo shows a wheelchair-accessible ramp that has eroded, ending in a small lip. Loose outdoor carpets curled and slid around on sloped surfaces. Accessibility routes were obstructed by furniture, as were aisles throughout the store. There were no handrails on indoor pedestrian ramps.
Louie’s suit claimed that he “suffered physical discomfort, physical injury, emotional distress, mental distress, mental suffering, mental anguish, which includes shame, humiliation, embarrassment, frustration, anger, chagrin, disappointment and worry, because of this discrimination.” He asked for damages “in the amount of $100,000,” as well as attorney’s fees. The suit didn’t detail any particular injury.
Naturwood President Lisa Keyes spoke very carefully of the suit. She said her staff never saw Louie in the store and that the owners had only received one previous complaint from a disabled customer: an informal letter approximately four years before. Keyes said her company wrote back within a couple of weeks, saying it would correct the problem—a lack of signage—which it did. “I think any business would be happy to make their customer happy,” she said.
Keyes said the company quickly settled Louie’s suit, but she wouldn’t say for how much. “It was less expensive than fighting it,” she concluded. The company since has hired an architect and an accessibility consultant.
Now, said Keyes, Naturwood is making almost $150,000 worth of renovations, much of which is in the parking areas. About 5 percent of the stock also has been removed from the floors to increase aisle space. A recent visit to two locations showed that while aisles appeared to be more accessible, parking-lot issues remained. A sign on each door read, “ADA upgrades in progress.”
Although Louie’s suit was obviously expensive for Naturwood, the company has accepted that ADA-compliance upgrades will have to be part of its regular maintenance budget, said Keyes—“part of the cost of doing business.”
But Naturwood’s case exposed another area of confusion for businesses. Keyes complained that the company’s newest store had been built around 1996. It had been inspected for code violations and had passed. “Why would the county pass our building as compliant if we weren’t compliant?”
According to Aaron Noble, senior architect for the Division of the State Architect, Keyes could have held her designers and contractors responsible for accessibility violations, as well. “You can’t rely on the building department to be the safety net,” Noble said by phone. “The design professional knows the code.”
But, as Noble explained, construction work relies on a team of professionals: the designers, the building department and the contractors. Attitudes vary about how important access regulations are, and sometimes mistakes are made. The building department is the one team member immune from lawsuits, though the state attorney general has put it on notice, as well.
In April 2002, Bill Lockyer sent a letter to local building-department officials: “Through this office’s disabled access enforcement work, we have found that deviations from disabled access requirements are often the result of a lack of adequate resources to carefully check plans, inadequate training of personnel and adherence to a philosophy that relaxes enforcement of state disabled access standards.” He urged building departments to correct their deficiencies before the attorney general’s office did it for them.
Blackseth, like Frances Gracechild, has looked at the access debate from both sides and tried to identify cooperative solutions. Blackseth, who’s quadriplegic and uses an electric wheelchair, sympathizes with the disabled community but also works with businesses targeted by them. In recent years, he’s joined forces with legislators who want reform.
One of them is Tim Leslie, the Republican assemblyman for District 4, who has tried twice before to pass a bill that would remove the threat of drive-by lawsuits.
In a press release from 2003, Leslie said one of his bills would have “given small businesses that made a good faith effort to comply with ADA requirements 60 days after being warned of possible violations to bring their businesses into compliance before disability advocates can sue them.”
According to Blackseth, the legislation failed because it removed the incentive for proactive compliance. Businesses could just wait until a disabled person gave them a warning. Did any other oppressed group have to wait two months before insisting on its civil rights?
According to Kevin O’Neill, legislative director for Leslie’s office, the assemblyman’s bills made him a target of what O’Neill characterized as “vicious attacks” by disabilities advocates. “He was called a segregationist,” said O’Neill.
This year, Leslie is proposing a third bill for reform, one that Blackseth helped write. The goal is to limit a business’s liability in cases in which a plaintiff suffered no harm—physical, mental or emotional. For instance, if a mirror is slightly higher than allowed, the business owner still will be liable for attorney fees and will be obligated to correct the violation but won’t pay the obligatory $4,000 or any other damages to the plaintiff. Take away the money, goes the argument, and you take away the impetus for drive-by lawsuits.
Advocates are still wary. Diana Honig, an attorney with Protection and Advocacy Inc., warns that before state laws are changed to accommodate businesses, some analysis is needed on just how many drive-by suits occur. At this point, no one knows. “Just because we’ve heard of anecdotal cases doesn’t mean there’s a widespread problem. … The disability community is very concerned that there’s this perceived [abuse].”
The data is difficult to obtain because most cases are settled out of court for undisclosed amounts.
“There’s a knee-jerk fear,” Blackseth insisted, “among the relatively uninformed” that any change to the ADA will weaken the rights of the disabled. But the greater threat, said Blackseth, is that there will be some backlash if California’s disability community doesn’t participate in providing businesses with some protection. “Better to do this now,” said Blackseth, “than to let the pendulum swing too much.”
Business owners sometimes complain that only a tiny portion of their customer base uses wheelchairs. Although the actual number of wheelchair users is unknown, the census for Sacramento County provides useful estimates: 224,148 people, or 20 percent of Sacramento County, are disabled, though that can include mental as well as physical disabilities and also people confined to care homes.
As Honig warned, “disability is an everyday part of life. … It could happen to anybody tomorrow.”
Although businesses that have been sued or threatened are often reluctant to discuss disability rights, SN&R found one company that had no qualms at all. David Hunter, the manager at Taylor’s Market on Freeport Boulevard, looked around at the store’s streamlined shelves and check stands. Hunter was at Taylor’s in 1990, when the ADA originally was passed, but he doesn’t remember any discussions at that time about how the market should respond to the law. What he does remember is watching the dramatic downfall of the River City Brewing Co. An upscale K Street restaurant, the River City Brewing Co. used to have a portion of its seating on an inaccessible mezzanine. River City’s past owners felt they had a case for not upgrading their facilities, and they eventually sunk into bankruptcy after putting up an expensive legal fight against plaintiff HolLynn D’Lil.
Not waiting to be sued, Taylor’s took “precautionary measures” about six years ago, said Hunter. It hired an attorney who evaluated the business for accessibility: The store didn’t have appropriate parking spaces, it didn’t have a cash register low enough for customers in wheelchairs, and it had two swinging front doors that were heavy and unwieldy. Now, the store has one wide front door; a new, accessible parking space; and an accessible check stand that’s nearest to the front door.
“When we found out about the restaurant,” Hunter said, “we knew we had to be proactive.”
Looking at the law, said Hunter, the management realized that some changes were unnecessary because of the age of the building. For instance, Taylor’s couldn’t have expanded its restrooms without knocking down walls and expanding the exterior of the building. “Structurally,” said Hunter, “we’re limited in what we can do.” This is one of the exemptions that business owners don’t always recognize. The law holds businesses responsible for “readily achievable” upgrades but doesn’t define the term. If a business can show that it is trying to comply, it has a better chance of receiving mercy from advocates and attorneys.
“I wouldn’t want to sue anyone who’s got plans to fix violations,” Hubbard had said, standing in front of Longs.
As Hunter surveyed the front of his market, he admitted, “That parking spot should have happened years ago. … It just didn’t.”
Hunter said that Taylor’s hadn’t received complaints from its customers before the upgrade but that the market has received the gratitude of its disabled customers since making the store easier to navigate. In fact, while Hunter pointed out the store’s newest renovations, two mobility scooters—streamlined electric wheelchairs outfitted with baskets—sat tied up like bicycles near the store’s new front door.