The federal Ninth Circuit Court of Appeals recently expanded the scope of the Americans with Disabilities Act. There is no joy in writing harshly about ADA laws, but I question this Opinion and fear a wave of new ADA lawsuits.
Robin Fortyune is a paraplegic who uses a wheelchair for mobility. He sued the City of Lomita in state court alleging he had “great difficulty” frequenting facilities in Lomita because the City’s public on-street parking is not accessible, ADA compliant, to people with disabilities.
Lomita removed the case to federal court. The trial court ruled in favor of Fortyune, the City appealed.
Congress enacted the ADA in 1990, effective June 26, 1992, to “remedy widespread discrimination against disabled individuals.” California has the comparable California Disabled Persons Act. Title II of the federal ADA prevents discrimination by state and local governments against disabled individuals.
While there are federal ADA regulations that require public entities to maintain buildings, parking lots and accessible public sidewalks, there are no regulations specifically targeted toward on-street parking.
ADA Guide for Small Towns
Lomita pointed out that the ADA Guide for Small Towns publication includes technical requirements for public parking lots and garages but no technical requirements or regulations for the design of on-street parking.
I’m just guessing here, but I suspect one reason for the lack of on-street parking regulations may be an acknowledgment of the potential wide-spread undertaking and cost of compliance for some municipalities.
The Court of Appeals concluded that notwithstanding there are no ADA regulations mandating on-street parking requirements, ADA law was drafted broadly to “…ensure that all normal governmental functions are reasonably accessible to disabled persons, irrespective of whether the Department of Justice has adopted technical specifications for the particular types of facilities involved.”
Plaintiff Fortyune prevailed under his federal and state ADA claims against the City of Lomita for failure to provide accessible on-street diagonal stall parking. Fortyune may seek money damages. (Fortyune dismissed his claim for failure to provide parallel on-street parking. I predict that will be revived in his next lawsuit.)
Porter’s Beef with Abusive ADA Lawsuits
ADA laws, of which I’ve written glowingly over the years, are being abused by a handful of plaintiffs, who some believe are more interested in making money than encouraging ADA compliance.
California, in an effort to curb abusive ADA lawsuits, amended its laws in 2012 requiring advance notice of specific ADA violations before a lawsuit may be filed, so . . . ADA plaintiffs now sue in federal court so California’s advance notice law does not apply; however, the same plaintiffs seek $4,000 an ADA violation — per visit — against a business premise based on California law. [Civil Code 52(a).]
Plea to Congress
I’m not alone in hoping that Congress will step up and make adjustments to the federal ADA laws, keeping all of the basic requirements necessary for people with disabilities, but adding minimal measures to prevent abusive lawsuits, which could be as simple as requiring 90-day notice and an opportunity to cure before a lawsuit may be filed.
I’d love to see my hero in Congress, Senator Dianne Feinstein, lead that effort.
Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. Jim’s practice areas include: real estate, development, construction, business, HOA’s, contracts, personal injury, mediation and other transactional matters. He may be reached at firstname.lastname@example.org or www.portersimon.com.