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March 28th, 2012

Senator Feinstein Calls on California Lawmakers to Enact Real ADA Reform

In recent weeks, US Senator Dianne Feinstein (D) has taken California legislators to task and urged them to address the excessive amount of “predatory” disability lawsuits that are plaguing the state.  In a letter written on March 8, 2012, to fellow Democrat and Senate President Pro Tem Darrell Steinberg, Senator Feinstein expressed her concern about the “shakedown” tactics being used by plaintiffs’ attorneys when demanding monetary settlements from business owners.  These demands require little in terms of improved access for the disabled, and they place a heavy financial burden on businesses.  Senator Feinstein highlighted how the system is counterproductive because the large monetary settlements leave businesses unable to afford to make the required access improvements.

Current California law diverges from the federal Americans with Disabilities Act by allowing for the recovery of damages for noncompliance.  California is unique in its approach, and as a result, faces a glaring problem that needs to be fixed.  Democrats and Republicans have come together to address the situation.  Senator Bob Dutton (R) is one of more than a half-dozen state legislators who have introduced bills aimed at decreasing the amount of disability lawsuits.  His proposed legislation, S.B. 1186, would give property owners time to fix violations before they can be sued.  In 2008, legislation was enacted that provided some legal protections for owners who have their businesses inspected by certified access specialists, but the bill did little to fix the problem.  In the years following the bill’s enactment, lawsuits filed by a predominant plaintiff have actually increased.

Senator Feinstein concluded her letter by expressing her desire that a resolution be reached at the state level, however, she made it very clear that she is willing to introduce legislation in the US Senate if California does not solve the problem.

Senator Feinstein’s timing in this matter is essential, as a very important deadline, put in place by the Americans with Disabilities Act “2010 Standards for Accessible Design,” looms.  This regulation specifies that any aquatic facility open to the public must have either a chair lift or a sloped entry to provide access to the disabled.  The Act placed a deadline of March 15, 2012, however, it was extended to May 21st after the US Department of Justice ruled that there was some confusion as to how to comply with the regulation.

This new requirement will dramatically increase the potential liability of public pool owners.  They are concerned about children’s safety because of their curious and playful nature.  Gene Rupnik, a franchise owner in Springfield, Illinois, expressed his concern and stated, “It has nothing to do with a lack of desire to aid the disabled…  I’m perplexed as to how to even put a chair lift in and the potential hazards it could create.  You know how kids are.  It’s going to be a plaything.”

The regulation also places a heavy financial burden on public pool owners.  Two downtown YMCA pools in Springfield spent $118,000 in renovations in order to comply with the new standards.  Pool operators will have to undergo these renovations or they leave themselves open to a lawsuit from the federal agency.  First-time violations carry civil penalties of up to $55,000.  For large chain hotels this may seem like a drop in the bucket, but for many small public pool owners the costs are significant.  These owners are left with the decision about whether pools are an essential reason why customers frequent their establishment, and if not, many may get rid of their aquatic facilities all together.

For additional information on these new regulations and efforts being taken by small businesses to comply, please click here.

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