Lawsuits Pit Businesses Against Disabled Customers

Jul 19, 2011

In 1990, the Americans With Disabilities Act was signed into law, prohibiting discrimination against the disabled. It requires the removal of physical barriers in public spaces so the disabled can have full and equal enjoyment of community facilities.

But in recent years, Clovis businesses have faced a surge of lawsuits for buildings that aren't up to ADA construction requirements. This has led to a heated debate within the community over the rights of the disabled and the survival of small businesses in the recession.

Fresno law student Rachelle Taylor gets around in a wheelchair. She’s on her lunch break from work and she’s just wheeled into a bustling restaurant in a neighborhood shopping center.

“You kinda learn how to scope out your route,” she says. “It’s almost like a chess game. You’re constantly planning two steps ahead.”

A few minutes earlier, Taylor tried to maneuver her wheelchair over bumpy bright yellow pads on the sloping sidewalk entrance. They’re supposed to help the visually impaired feel the slope with their feet, but Taylor says they make her life difficult. They have a name.

“Truncated domes – if you notice the yellow slabs, the little bumps, those are my nemesis, I can’t stand ‘em,” she says. “They make my shoes fall off. They loosen the screws in my chair. If I’m going down a slope and they’re at the bottom, my front wheel hits those and I go flying out of my chair.”

A snowboarding accident at age 15 left her paralyzed in her lower body. Now 27 years old, Taylor has had time to come up with little tricks to move about in public. But what works for others, such as those truncated domes, doesn’t always work for her. It’s a theme that has divided the local disabled community after a recent string of lawsuits has called into question what constitutes equal public access for the disabled.

Starting early last year, some 44 Clovis businesses were sued for not complying with laws designed to eliminate public barriers for the disabled. Since then, that number has risen to more than 60 lawsuits. They’ve forced some businesses to shut down for repairs. Shop owners say the lawsuits couldn’t have come at a worse time because of the recession.

Under state law and the federal Americans with Disabilities Act, or the ADA, businesses frequented by the public must provide equal access for the disabled. California building codes cover everything from wheelchair ramps to signs in Braille for the visually impaired.

Tina Sumner is the director of community and economic development for the city of Clovis. She says measurement requirements for items such as bathroom mirrors and towel dispensers are so strict and precise that small business owners often believe it’s impossible to achieve perfect compliance. That leaves them vulnerable to lawsuits. Each violation, even a seemingly minor one, carries a penalty of at least $4,000.

“(If) the signage is incorrect, the signage is the wrong height, the paper towel dispenser is too high, the mirror’s too high, the pipes under the sink aren’t wrapped, I mean, it just goes on and on and at $4,000 it adds up pretty fast,” Sumner says.

Behind these recent lawsuits is San Jose attorney Randy Moore, who has filed them on behalf of Fresno County clients. He says he is fighting for the civil rights of the disabled. He believes business owners have no excuses because the ADA has been around since the early 1990s, so they’ve had plenty of time to comply.

“We don’t bring a lawsuit in every case,” he says. “In many places that have what some people consider to be a minor violation, such as an inch off a mirror, something like that, we don’t bring lawsuits based upon those types of things. At least, historically, we’ve brought lawsuits when there have been 20, 30 or more violations.”

Moore says he and his clients don’t make much money from these cases, so it’s not about profit. The people he represents are tired of not being taken seriously.

“They’ll tell you that they tried for years to talk to people at the counters, talk to people at the businesses, make a complaint to somebody, put things in writing and nothing was ever done,” Moore says. “What we know is that until you bring a lawsuit, nothing gets done.”

One of Moore’s clients, Daniel Delgado, has a workshop off Highway 41 in the Madera foothills. It’s where he fixes wheelchairs and other mobility devices.

Delgado uses a wheelchair and says he’s been treated badly by local businesses. He recalls trying to get help operating a pump at a gas station.

“The person in that property said, ‘We are not gonna do it, you do it,’” he adds. “And I told them it is the law, the law is that you’re supposed to help us. They said, ‘Nope.’ And so I said, ‘Well, let me talk to your manager.” And they said, ‘The manager’s not here.’”

Local business owners are worried about their vulnerability. They say the laws are so tedious and conflicting that someone could find weaknesses even if an ADA specialist helped with the repairs. One Clovis business under fire is tobacco shop Cigars Ltd. Owner Micah Johnson wasn’t comfortable discussing the particular repairs he’s made because of the lawsuit. He says businesses would make accommodations if they were simply asked to do so.

“Ninety-nine percent of businesses would handle that and just do it,” he says. “But if they went to a lawyer and the lawyer decided to take a fee, in the first place, you’re creating a bitter resentment for both parties, both the businesses and those that are in need of that type of accessory.”

Legislators have taken notice of these lawsuits. A bill working its way through the House of Representatives would give sued businesses a grace period to make ADA modifications. Meanwhile, the city of Clovis is offering ADA workshops to help business owners become informed about the law. The city also offers consultations with ADA access specialists plus matching loans of up to $10,000 to help with repairs.

Rachelle Taylor believes many of these lawsuits are frivolous, even though she once came close to suing over access to her college dorm in San Diego before the school worked with her to make repairs.

“I think we’re in the middle of a budget crisis, and people need to be cognizant of that,” she says. “And if something is just slightly out of code, I think it’s ridiculous that somebody would use that as their meal ticket.”

Both sides say empathy for the disabled is still part of the culture, but a sense of independence is important for a disabled person’s quality of life. It requires a delicate balance to respect the rights of everyone in a community.