are inclined -- are increasing access. we see is full and equal enjoyment to accommodations offered by businesses. defined as business that are open to the public. and that is a broad brush. when the ada was passed in 1990, it was not effective until 18 months later, there was a grace period. the -- it was a civil rights statute. it was after the -- modeled after the civil rights act and like that statute, private enforcement, by the individual through litigation was how congress deemed was the best way to bring about fast and fare change -- fair change. they empower the individual to bring about change. the ada does not provide for damages.

it is purely a corrective measure. it allows injunctive relief which is a court order. someone can go to court and ask a court to order a defendant or business owner to make compliance is. the incentive for a lawyer to take on a case where he would get attorneys' fees. the two main components are intent of relief to cure the alleged defects and the attorney's feehan to incentivize attorneys that would of otherwise not take on the case. that was the main thrust. if the thing i want to mention, some common misperceptions -- the other thing i want to mention, there is common misperceptions. ada identifies and removes barriers. clients think the building is old. it has not been remodeled or

renovated. therefore they think their grandfather -- to hear that around -- you hear that around these cases, they are thinking grandfathering. it is an ongoing application. what may have been a barrier 20 years ago could be a barrier today. you have an obligation to not only identify but to remove the barrier if readily achievable. i will talk about -- there is a simple definition. i will skip ahead to garrido slides. usually it would be carried out with much difficulty and expense. it is a very over-simplified definition. it sounds easy but it is not in actual case in point. what may be affordable for one defendant may not be affordable for the other. for one property owner to another, to one tenant to another.

congress intended to be flexible and left a -- it vague. it is a case by case basis. it is not possible to have one- size-fits-all. that leaves part of the problem. each business's circumstances are different so you will not enough -- have necessarily one size fits all. i want to go back one slide. the ada through the department of justice which is the agency that is charged with setting forth guidelines to enforce the law through regulations, had a list of priorities for folks, business owners, and property owners to identify, to address. here are some that i have on the slide. the first one is access from the sidewalk or parking lot to the front door. when she never moved those barriers, you have to allow someone with disabilities to access goods and services that are made available to all non-

disabled individuals. if the food service related entities such a -- such as a restaurant, you must have a restroom and the rest must be accessible. there are other items such as telephones and atms. there are specific requirements, state and federal, that speak to those accommodations and those things such as tables, the door pressure, restrooms, those are classified as accommodations. that are offered to the public. we talked about readily achievable, a couple of factors that go into that analysis. what are the overall financial resources of the business? that depends on each person's circumstances, each entity's circumstances. also the nature -- how burdensome are the proposed

remedial measures? the last two items are not applicable to small businesses, they are intended for larger entities like a wal-mart or safeway or home depot to have multiple -- that have multiple locations. most small businesses do not. another reason we see access litigation in the news so often is there are a lot of businesses, a lot of properties, business owners, they all have a barrier in one form or another and identifying a barrier is not very difficult to find if you know what you are looking for. and there are very common barriers. i was talking about at first the list of priorities to allow access, it starts at the front door. a lot of businesses in san francisco, in older businesses have steps in the front and the prohibits someone in a motorized

wheelchair to overcome that barrier. and so from an ada standpoint, they are precluded from the beginning. what can be done about that? there is a number of litigants or cereal plant in sioux have caught on to that and they use that a lot and successfully in a lot of cases. i mentioned the ada is -- offers incentives relief and attorney's fees. over the years i found what drives the litigation is the attorneys' fees. sometimes attorneys' fees, oftentimes, fees exceed the amount of monetary damages that a plaintiff individual would get. supervisor mar: could you explain the type of improvements like a ramp at a certain area

or widening so wheelchair can go by? what are the main types? >> that is great. the main types would depend on if you are thinking about federal or state, the overlap as i mentioned, is a similar nature. i will speak about it generally. one of the readily achievable solutions for a step that the department of justice has concluded is a ramp. taking into consideration the slope, there must be a -- 1:12 ratio. if you had a five-inch step, you would have to have a 5 foot long portable ramp. in addition to demolishing the entire front of the store, repouring and resurfacing and regrading the ramp, in some cases you need to go inside the

store. there are businesses that might have considerable barriers to overcome with an eight-inch step. you would have to have an eight-foot ramp, that is unworkable. that tends to highlight what -- why that is achievable -- difficult to put your finger on. ok. that's the ada in a nutshell. there are two state laws commonly found. they draw the attention because the remedy for these statutes are monetary damages and that is what you hear about in the news when you hear that a business has been sued, the have to pay so much in damages to the plaintiff. they have to pay attorneys' fees to the prevailing plaintive, and they have to pay the cost of repair which is often lost in

the entire discussion. it may settle a case, but -- you may settle the case, but there are the hidden costs as well. that is the cost of remediation. the first lot is to -- law is the cdpa. it requires full and equal access and you will see this term, quite often. -- come up quite often. the california legislature amended this. the statutes i am about to talk about, there were on the books before the ada was passed. california had its statutes allowing access for persons with disabilities before the '88. the legislature thought we're going to change our laws and conform with the 88. there is a provision that says a violation or the -- any violation of the americans with disabilities act shall also be a violation of the statute.

so you can see how this may play out in that case. you have one plaintiff who identifies one barrier. the barrier is sufficient to stake a claim under the ada. there is also a sufficient claim under the california disabled persons act and enough to claim monetary damages, a minimum of $1,000 per occasion. yours -- to our ternate -- you are entitled to the attorneys' fees. you are either recovering that a underad -- under ada or state law. they coexist or overlap. this next law is one that many are familiar with. it is the driving force in terms of damages and access -- in excess cases, the california unruhe civil rights act.

it is a very broad application. all persons are entitled to full and equal accommodations in all instances of any kind whatsoever. that is taken from this -- the text of the statute. also the disabled persons act, a change to say, a violation of the ada services -- serves as a violation of this act. minimum damages of $4,000 per occasion. both the unruhe civil rights act and the ada provide that you recover civil or federal damages. if you can establish or damages that are more than $1,000 or more than $4,000 each time, you can choose the higher of the

amount. in some egregious cases, if you can show intent not to comply, you can seek a multiplier as a penalty, three times the amount of the damages. it is not three times the amount of minimum damages, it is three times the amount of the actual damages. if your actual damages were more than 4000, 5000, i could come after you and seek $15,000 per occasion. occasion means per instance i come to visit an accommodation and encounter a barrier, i am discriminated against because i do not have full and equal access. that is it in a nutshell. also there is a clause as well. the connection between federal and state law, the way it plays

on access and -- litigation is the attorney can seek relief under all acts, they can put them up there and pick and choose. it can stay all your claims and choose which ones you want. one important thing and want to mention under state laws, you cannot claim damages for both. it cannot -- if you are claiming under the disabled persons act for $1,000 minimum damage and unruh, you have to choose one or the other. as far as combining, that is permissible. the ada offer of incentive relief and attorney's fees. a state law comes in and provide monetary damages and that is what drives litigation. these cases can be filed in state court and federal court in

both courts, state or federal, are equipped to consider both claims, state and federal claims. i am pointing to a slide now, this is sb 1608, passed in 2008, codified in the civil code. 55.51 through 55.57. this was a piece of legislation that was intended in part to try to contain what was perceived as a growing problem presented by excess litigation. you probably heard and read about the few plaintiffs lawyers out there who have made the news. the legislation was introduced in part to address that problem. one way of doing so is that it clarified under state law per occasion which is the measure for what the scope of damages are. what it used to be prior to 160

a is civil code 55.51. prior to 1608, a lawyer could stack a case as follows. they have their client go to a public accommodation, they locate 10 barriers, and they claim damages for each barrier encountered on one occasion. multiplied by two or three different businesses identify the same problem and you have a significant problem. 1608 said it cannot do that. instead, no matter how barriers you encounter is per occasion or per visit. if you were to encounter a barrier, you suffer discrimination because it did not get full and equal access. you find five barriers. it can only claim per visit. -- you can only claim per visit or occasion. this is worth pointing out. if your business establishments

such as a mall, you have different businesses that make up one shopping center. that is treated differently than going back to one business multiple times. you could in theory, go to one business or two or three businesses in a mall and claim different violations per business visit. that is a little different there. 1608 established certified access specialists treated in the right to spend too much time talking about what that is because we have someone in the audience who can speak more to it. what role does a certified access have in excess litigation? is certified access specialist under 1608 is empowered to inspect a business and identify barriers. that is the main thrust of the law is to get ahead of the litigation by first voluntarily

going in, hiring a qualified professional, survey my place, and tell me what my problems are, and tell me how to fix them. 1608 provides a business owner or landlord who hires a certified access specialists to have that inspection and to have airport and who then starts taking steps to remove those barriers, if they are sued for access violations after that, subsequent to that, they can seek a remedy to contain the litigation. the one that comes to mind is a nady de -- in 98 litigation. if you had-if you are hit with based -- if you're hit with a lawsuit, you can go to court and seek a 90 day automatic stay and the case phrases. it is designed to continue damages and contain attorneys' fees so the parties can discuss an early resolution or settlement.

the problem with that is it is a state law. so the plant of's lawyers i come up against in litigation said, we will not file the state court, we will file in federal court. a lot of cases i see now are in the northern district of california at san francisco. they file their cases in federal court and i suspect, i never heard of them admit this but i suspect they do that to defeat that provision. when you're in federal court, you do apply state laws sometimes but if state law conflicts with the federal law, in case -- in this case, the ada, a person can move for. there is no such hold requirement in federal court. this is an untested area. when you reach a conflict, the general rule is the federal law will preempt and take over and displace, set aside the state

law. i suspect that the plaintiff puzzler after realizing this provision in 1608, when it can do to the case is avoid the state form and file -- for, and file in federal court. i have talked about this part already in 1608. wilson cover that part of damages. we finished discussing this today. there is one issue that does come up in excess litigation. whether or not the report from the certified taxes specialist is discoverable. i mentioned this because i have had a couple of clients where it came down to this. they had the foresight to hire access specialists.

they want to protect themselves. they got an expert and report and they start to make changes. they did not complete their changes and they got sued by an excess case. not in state court but in federal court. i can't quite ask for a stay. the lawyer says it does not apply in federal court. i say ok, we have these measures underway. what are your damages, let's talk about this and try to resolve this case. the plaintiff lawyers say, i want that report. it is not clear if it is discoverable. -- do you have to turn this over to the other side? what i have received in response to that is of course it is discoverable and if you do not turn it over, we will move forward with our case. regardless of the barriers that have been removed or in the process, the response i get is, you are no better than the other person who ignores their right.

that is an interesting issue that comes out once in awhile. supervisor cohen: has that situation been rectified? has there been a judge to rule on the scenario you just presented? >> no. the issue has come up to a judge who somewhat litigates said. in most of these instances most clients as do not want to take that on. they do not want to bring it to a judge and have a ruling on that. they are afraid or some clients are afraid to put off the plaintiff as a lawyer. they do not want to take that step and necessarily jeopardize their case or resolve the case. >> what cyrus business? >> -- what size business? >> it is small. a mom and pop business that has been open for 20 years on the

sunset. there were on their way to doing the right thing and it were not quite done with their remediation work and they get handed a lawsuit. supervisor cohen: did you turn over the plan? >> i did not. i turned it over. the position i am taking is it is not relevant for the plaintiff's purpose because were identified the barriers. in federal court, there is an order that tells you what you must do, we have a joint inspection and we had one with the experts going out there. we both jointly looked at the work that was planned, the work that had been done, and the work to be completed and we agreed that this business was well on its way. it did not quite finished on time. >> for what reason with the other the interested in looking at the plan? what would he/she extrapolate from that? >> i spent -- suspect that most reports are very broad, it is supposed to cover everything

that the expert finds. and therein lies the problem. if you disclose everything to a litigant or cereal plant of's lawyer, he or she may take liberties with that report. my client's fears are that they're going to then somehow increase their case. they're going to use it in the future or what -- comeback in a year or two and see if you have made those changes and they may be only enough to make five or 10 changes. they did not get 26 through 10. they can come back in and say it is time to talk about 6010 in lawsuit no. 2. it is possible. >> can i comment that the california unruh civil rights act seems incredibly broad? that is a basic problem when you have proactive intent to discriminate based on race,

gender, national origin, or other factors. i could see why three times actual damage, we're talking about small mom-and-pop businesses that are struggling to survive and to place that seemed a burden on them just sounds -- that is not the intent of the civil rights act. that is a key problem here, it seems. i do want to ask about the timing of the process. when you have a casp specialist, if the lawsuit has begun, can you still get the casp specialists under state law to give you that extra 90 days? >> is too late at that point under state law. it should not dissuade a business owner from getting a certified instructor to look at your place anyway. i also -- often council place -- counsel clients. hwo do -- how do i resolve this

case, what do i need to do to resolve this case? i counsel them, look beyond this case, did not address the barriers but they barriers as you can. you did not want to have a second lawsuit as i was offering my example to supervisor cohen there. it can come back and that will be under a different set of circumstances. the lawyer can say the second case dealt with different barriers from the first. there is no ha preclusion. i get a second bite at the apple. it is not because i am after you. it is because they did not consider their obligation tree that is evidenced by the fact you only made partial repair. whether we believe that i'm not so sure. are there any other question? thank you for bringing it down

so greatly. the next is carla johnson, the acting director. >> thank you for addressing -- giving me the opportunity to address the committee. we're here to see that all of our city programs and services are as accessible as required. toward that effort, we work with other city departments, it could be rec and park, public health, mta, public works, on their ada construction plans and we make sure that other construction projects are successful. if that in context to say that the city has to do many of the same things that small businesses do under the ada. we happen to be covered by a different section. that means that we look at the

barriers to our existing city buildings and we put together a plan and said priorities. oftentimes the plan has to be stretched out in time. in some cases by over 10 years. it is not always easy for the city to find the funding. we're looking at access where we're competing with a lot of other important programs. the city makes accessibility a priority. it is about civil rights and is about opportunities for the community to interact with each other and participate in activities. we prioritized that because of the law. believe it or not, even with the good work that the city has done over the last year to comply with the ada, we still get sued and some of the attorneys seem to be kidding -- more interested in getting attorneys' fees than effecting change. sounds familiar? the one big difference between the city and small-business is is we have experts on staff who

understand the access code. the ada says a business owner or public accommodation has continuing obligations to remove their barriers. some people, some businesses often times tekotte -- do not understand that the ada applies to existing buildings, even if there is no construction or remodeling. when the businesses are complying with the state building code because they have taken out building permits and gotten inspected, they do not comply with the american disabilities act. this is where this body can have such a significant and positive effect on making our business is accessible and on preserving the economic vitality of our small businesses. i see that information and technical expertise is the biggest challenges that face is

the small-business owner and the second challenge is making sure the city with all the different permit review agencies that were -- that we are coordinating our reviews and offering our recess -- our assistance to solve problems. i have advice about the casp inspection program, i am a casp inspector. this is a practice step and one of the things that you can do as a business owner is try to get good advice as quickly as possible. to hire a casp inspector, you want someone who has experience in design, construction, and inspection and in order to get illegal benefit to get that lawsuit on that 90-based day, your consol needs to be certified by the state of california under unruh.