Sunday, June 30, 2013

Some replies to Wretched Excess.

First, thanks for the comments.  Here is what two readers said -- What do you suggest we do? This law is being abused. A letter campaign? The restaurant association could impact a move to grandfather buildings of a,certain age or type. Just a thought.
7:19 AM
There needs to be laws passed that in such cases the plaintiff can not receieve any awards for the suit and that the owner has the option to rectify the situation at a low cost or recieve some kind of tax break to meet the compliance. It is a shame there is so much greed. Cause and effect. 
8:37 AM
Let me offer some responses, which may not have been clear in the original post.   From my perspective the ADA has been abused.   As my two commenters seem to suggest - there is support for assuring reasonable access.  Both the attorney and the plaintiff in this case are abusing the system.   I understand their "moral outrage" but from my view their protestations are contrived.   Based on the number of suits that the plaintiff has filed since the first of the year, it looks an awful lot like he has made it his "profession" to seek out places that are outside ADA standards.   

In the past there have been some alternatives suggested.   First, there are just too many bad incentives for both plaintiffs and attorneys.   One idea, which the trial bar opposes vigorously (for obvious reasons based on the rents they receive from the current system) - is to establish the British principle of loser pays.  If a suit is unsuccessful the plaintiff should be required to bear all the costs of the suit.  In this case the defendant was probably not in compliance with the ADA - I think that was for some obvious reasons.  So she would have lost a suit, based on the news stories and my experience at the restaurant.  I do not believe she was being unreasonable, but I believe the house did not meet ADA standards.   

In this case, however, there is an additional step.   Where there is no obvious pecuniary loss (from my perspective the plaintiff in this case did not suffer any loss except the possibility of eating at the place) the plaintiff should be barred from receiving any compensation.    That would lessen the incentive for lawyers to take on these kinds of cases and it would certainly stifle the small industry of constant plaintiffs.

A second possible change would be to introduce the concept of reasonableness.   The Lake Forest Cafe was (since it is after the last day the place was to be open) a successful but I suspect not a lucrative business.  I suspect, based on the age of the house, that ADA compliance would have eliminated any profitability for the place.   Enforcement of the ADA provisions should have perhaps two considerations.   First, what would the impact of enforcing ADA standards on the business in relation to the operating profits of the place?    Any competent cost accountant could be able to translate a business' books to understand whether putting in ADA compliant restrooms and ramps would be in any way reasonable.    Second, in deciding whether an ADA enforcement is reasonable the process should take into account are there reasonable alternatives within a reasonable distance to the place.   If there are not, then the business should be given a reasonable period of time to come into compliance assuming that the changes are economically feasible.   

If the defendant were undertaking substantial renovations to the place, then it might be appropriate to consider the implementation of ADA compliant entrances and restrooms.

I think everyone understands that for new construction the ADA standards add costs - but those costs spread out over the life of the building are OK to achieve the objective of assuring that the disabled have a chance to experience all the things that others can.   When the compliance is a retrofit, some alternatives need to be thought about.    That is both reasonable and fair.

From my discussions with people about this case, I think most Americans believe the disabled should have access to places, wherever possible.   But I think they are like I am annoyed that the system can be gamed as this case seems to have been so that the end result is either compensation to two people (the plaintiff and the attorney) who probably could care less about the Lake Forest Cafe and the loss of an institution to the community.

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