Shark or savior?

Last year, on the day before Christmas, the owner of the Arby’s restaurant in Redding received a court summons informing him that his restaurant was being sued for access deficiencies under the Americans with Disabilities Act. A month later, he received a similar summons pertaining to his other Arby’s franchise, in Chico.

This owner asked that his name not be used. He fears aggravating the attorney who has filed the lawsuits and making settlement more difficult.

As it is, he’s looking at spending up to $25,000 just on parking improvements at his Chico facility. This financial setback could not come at a worse time, he said, as his restaurants lost money in 2009. He is struggling to keep his employees paid and with medical benefits.

The man he fears is Lynn Hubbard III, a Chico attorney who is famous—or infamous, depending on one’s perspective—for his prolific lawsuits under the ADA.

Among the handful of lawyers who have made tidy livings filing ADA suits, Hubbard is at the top of the list. A November 2006 Sacramento Bee story ranked him first in number of lawsuits filed, with 163 in 2005 alone. To date, Hubbard has filed more than 1,000 ADA suits, making him perhaps the most litigious disabilities-related attorney in the country.

Hubbard, who works locally with a team of attorneys (including his son, Scottlynn J. Hubbard IV) as well as certain disabled people who are the injured parties, files lawsuits up and down the length of California.

Few of these suits actually go to court, however. The choice Hubbard presents businesses owners is a tough one: spend what could end up being exorbitant amounts of money on attorney’s fees to fight the lawsuit in court, or settle out of court and fix the problem.

For business owners accustomed to making bottom-line decisions, that’s really no choice at all. They settle. Hubbard and the disabled client he represents then pocket their money and move on to the next case.

The Americans with Disabilities Act (ADA) is a historic piece of legislation passed in 1990 that prohibits discrimination on the basis of disability in employment, state and local government, public accommodations, commercial facilities, transportation and telecommunications. The bill mandates that most public facilities provide access to disabled people, including those in wheelchairs, and includes a number of specific provisions about how that access is to be provided, from the slant allowed for ramps to the height of bathroom support bars.

Business owners in California have the additional obligation of complying with rigid state laws. The California Building Standards Code (CBSC), also known as Title 24, was first established in 1977 and was designed to ensure that newly constructed buildings meet California building standards.

Enforcing these laws is the duty of local government officials. In many cities and counties, however, there simply aren’t enough of them to make sure every building has conformed with every detail of the complex—and constantly changing—laws.

Lynn Hubbard’s wife has been in a wheelchair for 45 years, and both his parents are disabled. Hubbard says that accessibility for the disabled is personal for him, and businesses that present barriers for the disabled affect his family directly.

Lawsuits, he insists, are the only way to bring businesses into compliance with state and federal mandates.

During a recent sit-down with Hubbard and two of his more active clients, Larry Feezor and Rob O’Campo, at the Italian Cottage restaurant on The Esplanade, the men offered their insights into ADA complaints. A car accident left Feezor paralyzed from the chest down, and he has since required the use of a wheelchair. O’Campo can walk, but severe brain damage has affected his motor skills and eyesight.

Feezor is the client in the Redding Arby’s lawsuit, and O’Campo has that role in the suit filed against the Chico Arby’s, which is located on Notre Dame Boulevard. The Chico suit alleges 19 infractions (each potentially bringing a fine of up to $4,000) that range from the very technical (an access aisle with slopes that exceed 2 percent) to the very simple (a toilet-tissue dispenser with sharp edges).

“Here is kind of the way I look at it,” Hubbard said. “I don’t want to spend my life in prison, so I don’t go out and hold up banks. If people don’t want to be sued, then they shouldn’t violate the law.”

The federal government will give business owners a tax credit of $12,500 per year to make accessibility improvements, Hubbard said. They also can acquire a “hardship exception.” This allows business owners to be immune from lawsuits for a number of years, so long as they are taking verifiable steps toward coming into compliance with regulations.

The reality, the men added, is that business owners overwhelmingly fail to make use of these programs that are designed for their protection. As Feezor put it, “No business is going to spend money to bring their facility into compliance until they get a lawsuit … because they don’t think [a lawsuit’s] ever going to happen to them, and they don’t care about the disabled.”

The men were strongly opposed to any bill that would give business owners a timeline to come into compliance. “The laws have been around for too long,” Hubbard said. “It’s gotten tons of press. … If everybody is not very familiar with it, why, then, just too fucking bad.”

The debate over whether the ADA and Title 24 are in need of reform isn’t likely to be resolved soon. Business owners should be aware of the steps they can take to safeguard against litigation.

They can get help from Independent Living Services of Northern California. Executive Director Evan LeVang is surprised that more people don’t make use of the “walk and talk consultation” offered by the nonprofit organization. For as little as $50, a price that is negotiable, a small-business owner can be shown what needs to be fixed.

In a phone interview, LeVang said that disabled people have maintained a staggeringly high (70 percent) unemployment rate for many years now. He speculated that the overwhelming majority of them don’t want businesses to fail or go bankrupt because of ADA-related lawsuits. Disabled people would rather be incorporated (by means of employment) into a healthy marketplace.

Being proactive on these matters will save businesses money in the long run and, in the process, help to make California accessible for all, he said.