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When I first came on as CEO last October, I met with each Business Improvement District executive director and president, and asked them what their greatest challenges were. Time and time again, I heard that Americans with Disabilities Act, or ADA, “scam lawsuits” were hurting small businesses with no solution in sight.
But first, what’s the Business Improvement District Council (“BID Council”)? The BID Council is an umbrella organization of the city of San Diego’s 18 Business Improvement Districts, ranging from Ocean Beach MainStreet in the west to the College Area BID in the East and the San Ysidro Business Association in the south to Promote La Jolla in the north. In total, the BID Council represents over 16,000 small businesses. It’s our job to know what issues are important to the BIDs and their small business members, and to be on the forefront of creating positive, innovative solutions to those problems.
Getting back to “ADA scam lawsuits,” what do I mean by that? I’m referring to lawsuits brought by a handful of attorneys against small businesses. These attorneys target small businesses with no obvious interest in actual compliance. Let’s face reality here: the attorneys leave with the fee that they split with the plaintiff, and none of the fee goes towards making the businesses accessible. These lawsuits are hardly paving the way for accessibility; their end result is more money in the pockets of attorneys, less money for the small business owner to afford the changes they would need to become compliant.
That’s not to say that all ADA-related lawsuits are scams; I’m referring only to a few attorneys. One such attorney recently made headlines for bringing a lawsuit against an Ocean Beach business that was actually boarded up at the time when he claims to have entered the business. There are only a few attorneys perpetrating scam lawsuits, but their effect is great, and sadly it is almost unquantifiable. Fearful of court fees and knowing that the law is not in their favor, almost all small business owners choose to settle out of court, never becoming part of the documented history of this problem.
I love a challenge, and this one has three moving parts: the community of persons with disabilities, the business community, and legislation.
The community of persons with disabilities feels that businesses should already be in compliance. After all, ADA has been the law since 1990, and businesses did have an 18-month grace period to come into compliance. So why are businesses still not in compliance?
Then there are the small business owners, who actually want nothing more than to be disability friendly and ADA compliant! Unfortunately, they are confused by ADA law and afraid of getting sued. Why the confusion? Most small business owners believe that when the city of San Diego signs off on their permits, they’re ADA compliant. Others believe that they have been grandfathered in. Wrong! State and Federal ADA law apply to them as well. The problem is that no one from the state or federal government is tasked with consulting to small businesses and signing off on their compliance. Instead of answers, small business owners get lost in the system.
Finally, we have a confusing and ever-changing ADA law that lacks government agencies to guide businesses through its requirements. How do small business owners achieve compliance without any assistance from the state or federal government? Keeping up with ADA law is no easy task. Remember that most small business in San Diego is sole proprietor or sole proprietor plus one employee; these are folks trying to make a living just like everyone else, and it’s not easy. As they stand, these laws do nothing to encourage compliance. They simply reward the folks that notice the problem.
So, the business owners fear lawsuits; the community of persons with disabilities wants and deserves immediate compliance; and the law is confusing and unenforceable. What we have here is the perfect storm.
The BID Council has created a unique coalition to tackle this perfect storm. It includes small business owners, BID Executive Directors, Kirsten Clemons, District Director of Assembly Member Lori Saldaña’s, Spencer Skeen, Senior Counsel with Procopio, Cory, Hargreaves and Savitch LLP, Loretta Moore of San Diego Center for the Blind, Wes Johnson of Accessible San Diego and city of San Diego staff. We have a common goal of creating accessibility in San Diego, and together we’re building a bridge to that goal.
Now that we’ve formed our coalition, we want to address the following question: How do we shape legislation that protects small businesses from ADA scam lawsuits while simultaneously honoring the community of persons with disabilities?