Senator's ADA crusade hits a familiar wall

Across three decades and two separate stints in the Legislature, Sen. Roger Niello has been trying to reform California's application of the Americans with Disabilities Act.

The Republican politician from the Sacramento suburbs is among a chorus of voices who say the law is well-intentioned -- but that it allows a class of predatory professional plaintiffs to file dozens of lawsuits, often dinging well-meaning small businesses for minor violations. Niello said the ADA, combined with California's Unruh Civil Rights Act and its private right of action, can expose unwitting small businesses to costly litigation.

"This issue goes back to my time in the Assembly, which was from 2004 to 2010," Niello said when reached by phone recently. "This was every bit as much as a challenging issue for businesses, especially small businesses, but at that time I wasn't even successful in getting proposals out of committees."

That all changed last year when the Senate passed Niello's SB 84 on a 34-2 bipartisan vote.

The bill would allow businesses with fewer than 50 employees to fix alleged disability-access violations. Plaintiffs would have to send notice first, then wait 120 days before seeking damages. Niello credited the change to a new generation of Democrats who had seen the damage predatory disability lawsuits had done to small businesses in their own districts.

Immovable Kalra?

Then SB 84 landed in the Assembly a year ago -- and has not moved since.

Niello said Assembly Judiciary Committee Chair Ash Kalra, D-San Jose, "is the single individual standing in the way of the bill."

"I firmly believe that if it was submitted for a vote that it would pass because it passed overwhelmingly in the Senate," Niello said. "But for whatever reason he doesn't like the bill."

Niello's office confirmed he met with Kalra last week to discuss the fate of SB 84, but that "the status of the bill remains the same." Kalra's office did not respond to emails seeking comment. As of Monday, the bill had not been scheduled for a hearing.

Prolific plaintiffs

When critics of the ADA talk about the law, they are often picturing someone like Brian Whitaker.

Whitaker uses a wheelchair because of a spinal injury. He has also filed nearly 1,800 ADA lawsuits across California's four federal districts.

He has also filed about 50 lawsuits in Sacramento Superior Court. His 18th filing this year involves a Cold Stone Creamery location. Whitaker alleges there was a cooler and trash can that blocked his access to a bathroom, as well as a mirror and coat rack too high for him to use -- all defects easily fixed within Niello's 120-day window. Niello's office confirmed SB 84 would apply to franchises under the employee limit.

The complaint was filed by Seabock Price APC, a Sacramento firm that specializes in these cases.

"The story of SB 84 cannot be told without including AB 649, which is also being considered this year and likely would have become law last year if the California Senate had given it a hearing," said the firm's co-founder, Dennis J. Price, in an email. "We support what everyone should support: better access for disabled Californians. But that is not what SB 84 offers."

AB 649 would create a Small Business Right to Cure Program through California's existing Certified Access Specialist, or CASp, Certification Program, though it would only apply to businesses with 25 or fewer workers. It also provides 120 days to cure later claims, allows fee recovery, and excludes intentional or nonphysical-access claims.

That bill passed the Assembly 78-0 last year. It has been stalled in the Senate Judiciary Committee ever since; Chair Tom Umberg's office did not respond to questions over whether it will get a hearing this year.

Both bills line up with many of the usual suspects. The California Chamber of Commerce and the Civil Justice Association support them. The Consumer Attorneys of California and many disability groups are against both. But not Price.

"We support efforts to reduce litigation through increased access and have no opposition to AB 649, which would accomplish both," he said.

Long game

Whatever happens, Niello said, he will keep trying.

He turned 78 this month. But after winning 56% of the primary vote this month, he will be favored to return to the Senate for a final four-year term.

If he wins and serves his full term, he will outlast two other holdovers from an earlier era and a previous term limits law. Sens. John Laird, 76, and Umberg, 70, also returned to the Legislature after long absences. Umberg will leave office this fall, Laird in 2028.

Niello would finish with 14 years in the Legislature, two more years than are allowed for anyone first elected in 2012 or later. Kalra will term out two years from now. But Niello knows that alone will not ensure smooth sailing.

"I tell people as a member of the minority party, I have become quite adroit at crashing and burning with grace and my dignity intact," Niello said.