Accessibility - sponsored by Universal Design Newsletter

Experts Say California Suit Not Causing Ripple Effect

By Teri Figueroa
Published Jan 28th, 2006 by North County Times NCTimes.com
http://www.nctimes.com/articles/2006/01/29/news/ top_stories/22_31_051_28_06.txt 

Though the threats of lawsuits over access for the disabled have most of the businesses in the town of Julian scrambling to make their shops more wheelchair-friendly, businesses in other parts of the county don't appear to be doing the same thing.

Local consultants -- professionals who evaluate whether businesses are following disability access laws -- say they have seen no increase in calls from small business owners fretting that they could be breaking laws that require buildings to be accessible to people with disabilities.

Every few years or so, local business leaders and planners say, communities or groups of businesses in an area see an increase in lawsuits related to laws concerning access.

Most recently catching public attention was a legal fight over 67 businesses in Julian, many of which line the main drag in the quaint mountain hamlet that caters largely to tourists.

San Diego attorney Theodore Pinnock, who has cerebral palsy and uses a wheelchair, threatened to sue the 67 businesses in question after a trip in November when, he said, he found little or no access to the shops during a weekend trip to the community in November.

The situation generated news reports, talk show chatter and numerous letters to the editor. And yet, access consultants say, they aren't hearing more phone lines than usual ringing in their offices.

The consultants, who survey businesses and help set up plans to fix problems with disability access, say not getting into compliance with the law could be costly for businesses.

Under federal law, each violation that blocks or inhibits access to a disabled person could cost a business owner a $4,000 fine.

"There are a lot of businesses out there that are in trouble that they don't know about," local disability access consultant Tanjia Thrun said last week.

Thrun said she has "heard a million and one reasons" why people think their businesses don't have to be accessible.

Many business owners think they don't have to comply because of the age or location of their business, she said.

Most of the reasons offered are wrong, she said.

Disability access suits in the news

In the Julian case, Pinnock sent letters demanding that the business owners make the physical changes to the shops to provide access ---- and demanding that they pay him a settlement fee ranging between $2,500 and $4,000.

Some paid up. But nearly three dozen of them banded together, refused to pay and in December filed a federal suit accusing Pinnock of a shakedown.

Pinnock balked at the characterization and has said the suit is without merit. He has also defended his negotiation tactics as a legitimate move against businesses that break access laws.

Laws requiring businesses to offer access for the disabled are not new. California's laws date to 1968, and federal laws guaranteeing access for the disabled have been in effect since 1992.

Local disability access consultant Chip Kull theorizes that business owners simply ignore the access laws, and some attorneys see that indifference as an opportunity for a payday.

"Now 14, 15 years down the road, everybody is screaming foul," Kull said of the lawsuits business owners face. "Now they have to pay $4,000 per violation, attorneys fees, and make fixes. If you started (working to comply with access laws) in 1992, you wouldn't have had this expense."

Not cheap or easy to fix

Fixing these problems is not a cheap or easy task for business owners trying to get their businesses in line with access laws.

The federal government has access standards. The state has access standards. Not always do the twain meet.

Take, for example, the width of an access path into a business. Federal regulations require it to be 36 inches wide. California requires a width of 48 inches.

Then there is the matter of finding the access requirement codes themselves. The federal government posts its standards online. The state charges for its list of requirements, according to one local access consultant.

So what is a business owner to do?

"That is the big problem," Kull said.

Kull said he has had new clients toss stacks of access regulations on his desk, throw their hands up in surrender and ask for his help.

"I have found businesses generally want to get into compliance, but they don't know what to do," said Barbara Thorpe, who runs four access consulting offices across the nation, including one in San Diego.

Consultants say business owners staring at lawsuits tell them they just didn't know they weren't complying with the law and that they never intended to block access for disabled customers.

Businesses that contact consultants versed in access laws will pay for that expertise, possibly anywhere from a couple of hundred to a couple of thousand dollars, depending on the services required and rendered.

An attorney for one of the targeted Julian businesses put the price tag for hiring a consultant at $1,300.

None of that addresses the actual cost of making the structural fixes to ensure access.

Whether businesses hire a consultant or do it themselves, Kull, Thrun and Thorpe all made the same recommendation: Get into compliance. Start now. And start from the outside of the shop and work inward.

Some said that many access lawsuits start with a "drive-by" ---- a quick look by potential plaintiffs to see if a business' parking situation is adequate.

If the parking situation shows good access for the disabled, "chances are they will pass the property by and go sue somebody else," Kull said. "If not, they will come poking around."

But the bottom line, the consultants say, is to get a plan in place and begin making the fixes.

"Nobody wants to get sued, because it gets real expensive and you can't win these cases," Kull said, "but sometimes people are penny-wise and pound-foolish."