Capital Review

State Representative David Ortiz (D-Littleton) makes a compelling advocate for the rights and struggles of disabled Coloradans.

“I lived 30 years as an able-bodied leg-walker, a five-minute-mile running, hard-charging combat aviator — until a crash in Afghanistan left me paralyzed from the waist down,” he told the House Judiciary Committee.

He understandably views himself as the unofficial representative of the disabled community and fashions his legislative agenda with that constituency in mind. So, it follows that he would sponsor legislation intended to overcome barriers to accessibility.

His House Bill 1032 would change Colorado law to specifically allow lawsuits regarding disability access violations to seek “emotional distress” damages of up to $642,180 and to require defendants to pay attorney fees and costs for prevailing plaintiffs.

“Any time I encounter a staircase, a way that the world is inaccessible, those are (emotional) damages I should be entitled to when it is blatant, when it is obvious,” Ortiz said.

That’s where Coloradans who have defended against disability lawsuits cry foul. HB 1032 doesn’t increase damages only in cases in which violations are “blatant” or “obvious.” It creates a six-figure incentive to litigate accessibility problems rather than resolve them. Even the bill’s supporters acknowledge that lawsuits typically take two years to resolve.

Attorney Courtenay Patterson agrees with Rep. Ortiz’s objective but not with changes proposed in the bill: “Everyone should want all businesses to be compliant with ADA. Business owners, especially, should want to be compliant.”

Patterson recounted representing more than 35 businesses – most owned by minorities, women or the elderly – that were sued for ADA violations. Nearly every case was brought by out-of-state attorneys, representing out-of-state plaintiffs, she said.

Moshe Kirsh owns property in Lakewood. He said the first notice he received of any ADA problem came in a notice from an out-of-state attorney that he was being sued.

“They sent me a letter demanding $10,000 for dropping the lawsuit in hopes I would be scared enough to give into this extortion,” he said. “This shows that the entire lawsuit was never for the benefit of disabled people but intimidation tactics to collect an easy-money settlement.”

Azita Nehchiri, who operates Saffron Grill in Lakewood, expressed similar skepticism that the lawsuit filed against her restaurant was truly intended to benefit the disabled.

“We changed (the problem) very quickly,” she said. “I care about my customers! Why (don’t they) give us time to change?”

Patterson said the businesses she represented thought they were in compliance with ADA because they had received a certificate of occupancy.

“These lawsuits try to scare the business owners into settling quickly for $10,000 or $15,000 rather than face long, expensive litigation,” she said. “To a big corporation, that’s not a big deal, but to these small, locally-owned businesses, $10,000 or $15,000 could break them.”

Business owners described letters from out-of-state attorneys citing a litany of ADA violations, many of which were obviously false, lending further doubt about whether the plaintiff had ever set foot in the businesses.

Businesses know they have to set aside ADA parking spots, “but if they put their signs at 55 inches rather than 60, they can be sued,” Patterson said. “They know they have to put grab bars in their bathrooms, but if it’s an inch too high or too low, they can be sued.”

If plaintiff’s attorneys can suddenly seek eye-popping emotional damages of more than $500,000 — even when damages are neither blatant nor obvious — an avalanche of “drive-by lawsuits” is expected.

Few businesses seem to purposefully flaunt accessibility laws and most will quickly remedy shortcomings when made aware of them, so HB 1032 seems to be a needless incentive for more adversarial proceedings.

“In my experience, the best laws have both a carrot and a stick,” observed Rep. Marc Snyder (D-Manitou Springs). “I see a lot of sticks here, but I don’t see any carrots.”

Except for a few bad actors, the most efficient means of resolving accessibility problems might be personal contact with the business. Litigation should be a last resort.

Mark Hillman served as Senate Majority Leader and State Treasurer. He is executive director of Colorado Civil Justice League.