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1 Gordon & Rees LLP Attorneys at Law 101 Broadway Suite 1600 San Diego, CA Phone: (619) Fax: (619) May 27, 2005 Senator Sheila Kuehl State Capital, Room 5108 Sacramento, Ca Re: SB 855 (Poochigian): Disabled access: Liability Representing Clients: Julian Josephenson (JS Foods) Casual Dining and Bar Stools Dobson s Restaurant Robert Frazee (Frazee Paint) Dallo Enterprises Dear Senator Kuehl: I was present at the Senate Judiciary Committee hearing on SB 855 on May 3, 2005, and expressed my support for that bill. By way of background, I am a civil litigation defense attorney who has had, unfortunately, extensive experience in attempting to defend disabled access cases for over twelve years. As with any attorney who does not countenance discrimination of any type, and who understands how both the Americans with Disabilities Act ( ADA ) and California s disability access laws work, I always encourage my clients to make modifications to the property involved in the litigation, as well as any other property or business they own or operate if not included in the litigation. Even without such concern, however, any attorney with a basic understanding of the law and healthy respect for her client s finances would rarely recommend not complying with a disabled person s request to remove accessibility barriers. What was clear from the testimony of the proponents and opponents of SB 855 is that there is common ground between both sides of this debate from which a positive result could be obtained, which result would not promote better compliance with disabled access laws and regulations, but also minimize predatory attacks from serial plaintiffs that do nothing but adversely impact small business owners throughout the State of California. For example, businesses in areas such as West Hollywood are prime targets of such lawsuits.

2 I recall your initial support of a modification of SB 855 to include intent language and respectfully request your continued support of that effort so as to get the bill out of the Senate Judiciary Committee and into a position where the people who appeared on May 3 rd can get together and utilize that common ground to fix the system about which the disabled access advocates at the hearing complained. Much more can be done to promote compliance with disabled access laws without resorting to litigation. Background of the System California s disabled access regulations, contained in Title 24 of the California Code of Regulations, have been in existence since Building departments throughout the state of California have, since then, been charged with ensuring enforcement of those regulations insofar as those laws apply to new construction or remodels, i.e., situations in which a building department would typically become involved through the permit process. On the other hand, the ADA states that the owner or operator of a public accommodation commits discrimination when she fails to remove an accessibility barrier (which by definition is something that does not comply with the ADA Accessibility Guidelines ( ADAAG )), the federal equivalent of Title 24 when it is readily achievable to do so. Contrary to popular belief, there is no grand fathering provision in the ADA. The age of the building, however, may be relevant to the extent that a particular access barrier is rendered more difficult to remove due to the cost of doing so. Even after California incorporated the ADA into both the Unruh Civil Rights Act and California Disable Persons Access Act, until 1998 the Unruh Civil Rights Act specifically precluded any obligation to modify new or existing buildings. Thus, before then, business owners were faced with a situation where they were expressly allowed to do nothing by California law, but would then be guilty of discrimination under federal law. In those rare instances in which a building inspector in California pays attention to access issues when processing a building permit, the inspector has the ability to issue a hardship waiver as to an owner s obligation to remove a particular access barrier. (The factors utilized in making such a determination are somewhat similar to the factors utilized to ascertain whether the removal of an accessibility barrier is readily achievable pursuant to the ADA.) In addition, with respect to a remodel, California law contains a monetary limit on what an owner would otherwise be required to spend to remove access barriers, which limit is based upon the overall cost of the project. The System Needs to be Fixed Contrary to erroneous assumptions of disabled access advocates, most business owners currently believe that their properties comply with pertinent disabled access regulations. Based upon the description of the system set forth above, is it any wonder why the system does not work?

3 Any business owner who ahs purchased a business within the last five years has rarely purchased a business that, within five to ten years before that, was not remodeled. As such, it would not be unusual for a business owner to assume that, during the remodel, the person doing the work was required to comply with pertinent disabled access regulations. The business owner would then walk through the parking lot and see striped disabled access parking stalls with signs, and that assumption would be reinforced. A trip to the bathroom to see grab bars would also reinforce that assumption. That same business owner, however, would not understand that a ramp that extends into a parking access aisle or that improperly positioned grab bars do not comply with disable access regulations. Such owners do not understand that the very existence of such conditions constitutes an act of discrimination pursuant to the ADA and, by incorporation, a violation of California law. (Thus, the education amendment to SB 855 was a very good idea.) Those opponents to SB 855 who base arguments against pre-litigation notice upon an analogy to a police officer not being required to give notice before they can issue a traffic ticket are not being reasonable. Anybody who wishes to obtain a driver s license in the State of California must study for and pass a test that requires a person to know the details of traffic laws. Such people have a basic knowledge about what is right and wrong in the context of driving a motor vehicle on a public highway. Such testing or knowledge is not required in an ADA context. In fact, a person pulled over because of a defective taillight is most often given a fix-it ticket. While I do not know whether pre-litigation notice would survive a negotiated version of SB 855, I do know that many of the arguments thereto made by opponents to SB 855 lack merit. You, yourself, explained to those opponents that other forms of discrimination require a form of pre-lawsuit notice by way of being required to file claims for damages (based upon Title VII or the California Fair Employment and Housing Act) with the appropriate governmental agency. Moreover, unlike other acts of discrimination, as indicated above, a person can be liable for discrimination under the ADA without engaging in any type of affirmative conduct. In non-disability access discrimination lawsuits, it is affirmative conduct that is usually sought to be modified. It is obviously much easier to modify property than it is to modify behavior, and such changes to property are immediately ascertainable and do not require a Court order to confirm compliance, i.e., the barrier is either removed or not removed in accordance with the extensive regulatory requirements currently in place. Disabled access lawsuits would not be unique if pre-litigation notice was required. Such notice is required before a lawsuit may be filed against a developer of a condominium project. Moreover, such notice is entirely consistent with the alternative dispute resolution goals of the civil justice system in California. In addition, claims that per-litigation notice, such as that required by SB 855 would create a stringent procedural hurdle are, quite simply, unsubstantiated hyperbole.

4 I also heard some concern about lack of empirical evidence that the system is being abused. You need look no further than your own backyard for such proof. The federal courthouse in San Diego deals so frequently with these issues that they have special procedures set up to help expedite these claims, both for he benefit of the defendants and the plaintiffs. Certain plaintiffs file an incredible number of cases over a very short period of time, so much so that some of the federal judges of San Diego are being asked to consider classifying them as vexatious litigants. (U.S. District Court Judge Napoleon A. Jones, Jr. just granted such a motion.) In fact, the Friday after SB 855 was defeated in Committee, nine lawsuits were filed in United States District Court here in San Diego. Eight of those were disabled access lawsuits filed by attorneys who represent the type of serial plaintiffs targeted by SB 855. (For further confirmation of such empirical information, the Committee staff may simply search the federal court filings on-line in any federal district court in California.) The System Can Be Fixed There were too many bright and well-meaning people in the Committee Room on May 3 rd to make me believe that we cannot fix the system criticized by both proponents and opponents of SB 855. In fact, SB 855 could be the nexus of a comprehensive overhaul of the system. For example, California law could require business purchase and sale agreements to address access issues and impose penalties for not doing so. Architects and contractors should also be required to know access laws and be held responsible for violations of accessibility regulations. (I have had more than one case in which the architect and contractor upon which my client had relied failed miserably in providing access when they promised to do so.) Requirements could be attached to both architect and contractor licensing laws to ensure knowledge of and sensitivity to disables access regulations. To minimize the abuse of California law, modifications of damage provisions in both the Unruh Civil Rights Act and the Disable Persons Access Act could be considered. Only those laws contain damage provisions, for damages are not allowed for a violation of Title III of the ADA. Legal interpretation of those provisions could be clarified, and the actual conflict between the amounts allowed as damages by otherwise identical language in the Unruh Act and the Disabled Persons Access Act ($4,000 v. $1,000) should be resolved. Elimination of any damage provisions, consistent with the ADA, should also be considered. As any civil litigation plaintiff or defense attorney can tell you, a disable person who is actually injured by an accessibility barrier will be able to prove his or her damage claim pursuant to the doctrine of negligence per se set forth in California Evidence Code Section 669. Elimination of any damage language would not effect those persons who are not the serial plaintiffs targeted by SB 855, for they would continue to be allowed to recover the fees of any attorney they need to hire to file an action to remove an accessibility barrier.

5 As I hope you can understand from this letter, I am not a rabid pro-business/ anti-disabled access advocate. (In fact, if I had the opportunity to ask for a show of hands of all persons in that hearing room who were certified to referee a soccer match between persons with disabilities, I probably would have been the only person raising a hand.) What you have before you is, believe it or not, a letter from an attorney who wants California Legislature to do all it can to eliminate what is, unfortunately, an all to large part of this business. I know that this system is being abused and I know that, with the support of the opponents I heard at the May 3 rd hearing, the system can be fixed. I know that we should all do what we can to help accomplish that result. I stand ready, willing and able to assist you, the Senate Judiciary Committee, and your staff in this endeavor. Please support the continue efforts of Senator Poochigian and upon reconsideration of SB 855, at least, send an intent bill out to the Judiciary Committee so that we can accomplish this goal. Sincerely, GORDON & REES LLP Jan K. Budding, Jr. JKB: jf cc: Senator Charles Poochigian Senator Joseph Dunn Senator Bill Morrow Senator Dick Ackerman Senator Gilbert Cedillo Senator Martha Esquita Senator Liz Figueroa Gloria Megino Ochoa, Esq. Governor Arnold Schwarzenegger Aristotle E. Evia, Esq.