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HomeMy WebLinkAboutAgenda Report - February 2, 2005 E-11AGENDA ITEM E- 11 CITY OF LODI COUNCIL COMMUNICATION im AGENDA TITLE: Adopt Resolution Supporting Legislation Amending the Americans with Disabilities Act (ADA) to Require Notice Priorto Filing Legal Action MEETING DATE: February 2, 2005 City Council Meeting PREPARED BY: Steve Schwabauer, City Attorney RECOMMENDED ACTION: That the City Council adopt Resolution supporting Legislation amending the Americans with Disabilities Act to require notice prior to filing legal action BACKGROUND INFORMATION: The City of Morro Bay has been involved in litigation since 2002 for alleged violations of the Americans with Disabilities Act (ADA) and State Access laws and has requested our support of legislation amending the ADA. Morro Bay quickly settled a portion of the lawsuit by agreeing to spend $75,000 on ADA improvements over the next five years. The City was unable to settle the portion of the lawsuit dealing with attorneys' fees as plaintiffs attorneys demanded $200,000. The Court recently reduced the amount of the attorneys' fees to $54,000 and the plaintiffs attorney has now appealed the decision. In 2004, litigation was filed against 16 locally owned and operated restaurants in Morro Bay for alleged ADA violations, with all of the lawsuits being identical having been filed by the same plaintiff and attorney. The lawsuits have caused a tremendous impact on the community, causing two of the restaurants to close their doors due to their financial inability to fight the allegations. Lodi businesses have seen their own actions including Michael David Vineyards. The 14 -year old Americans with Disabilities Act is a good law, but unfortunately, the intent and spirit of the ADA of 1990 is being abused, People are filing lawsuits for minor technical access violations without giving small business owners an opportunity to remedy the alleged violations. Fearing the time, hassle and expense of lawsuits, small businesses are being forced into cash settlements. Congressman Mark Foley (R -FL) introduced ADA Notification Act (H.R. 728) which amends the American with Disabilities Act of 1990 to deny jurisdiction to a court in a civil action for remedies unless the complainant has implemented specified notification procedures that include opportunity for correction of the alleged violation. Assemblyman Tim Leslie (Tahoe City) introduced similar legislation, AB 2594 Public Accommodations: Persons with Disabilities to allow a person who hires an ADA specialist to review the design and construction of the person's premises to have a Certificate of ADA Compliance. Holders of such a certificate would be entitled to notice and the opportunity to correct future ADA violations before a civil lawsuit could be filed. The above-mentioned legislation would curtail the abusive practice of certain people filing lawsuits for easily correctable ADA infractions and would enable small businesses to work with the disabled community to correct minor violations and improve accessibility for the disabled. In essence, the passage of this legislation would tip the balance back to accessibility. FUNDING: Not applicable D. ephen Schwabauer �J ppro ed: City Attorney i im rueger, Finance Director APPROVED: Blair King, City Manager RESOLUTION NO. 2005-23 A RESOLUTION OF THE LODI CITY COUNCIL SUPPORTING LEGISLATION AMENDING THE AMERICANS WITH DISABILITIES ACT TO REQUIRE NOTICE PRIOR TO FILING LEGAL ACTION WHEREAS, the Americans with Disabilities Act gives civil rights protection to individuals with disabilities similar to those provided to individuals on the basis of race, color, sex, national origin, age, and religion; and WHEREAS, the Americans with Disabilities Act guarantees equal opportunity for individuals with disabilities in public accommodations, employment, transportation, state and local government services, and telecommunications; and WHEREAS, the City of Lodi supports the goals of this landmark civil rights law and the original intent of the Americans with Disabilities Act because it provides equal access opportunities for all Americans; and WHEREAS, since the enactment of the Americans with Disabilities Act, many abuses have been perpetrated against property owners by a few unscrupulous attorneys seeking to wage economic retribution upon property owners using the guise of a well-intentioned civil rights law. Unfortunately, it is not the goal of these few attorneys to improve accessibility for the disabled, but to exact financial punishment through lawsuits; and WHEREAS, legislation has been introduced by California State Assemblyman Tim Leslie (AB 2594) and by U. S. Congressman Mark Foley (H.R. 728) that would amend the Americans with Disabilities Act to require, as a precondition to commencing a civil action with respect to a place of public accommodation or commercial facility, that an opportunity be provided to correct alleged violations. NOW, THEREFORE, BE IT RESOLVED that the Lodi City Council hereby supports the adoption of legislation that would require notice prior to filing legal action for violations of the Americans with Disabilities Act since it would curtail the abusive practice of certain attorneys by providing a due process provision for property owners so that they may be in full compliance with the Act; and BE IT FURTHER RESOLVED that, upon passage, the C i Clerk shall deliver this Resolution to the League of California Cities, Central Valley Cities, the Governor's office, and to the California and Federal Legislative Delegation. Dated February2,2005 I hereby certify that Resolution No. 2005-23 was passed and adopted by the city Council of the City of Lodi in a regular meeting held February 2, 2005, by the following vote: AYES: COUNCIL MEMBERS— Hansen, Hitchcock, Johnson, Mounce, and Mayor Beckman NOES: COUNCIL MEMBERS— None ABSENT: COUNCIL MEMBERS— None ABSTAIN: COUNCIL MEMBERS— None SUSAN J. BLACKSTON City Clerk 2005-23 A r ! �t DECLARATION •• • TRANSMITTAL LETTER AND RESOLUTION SUPPORTING LEGISLATION AMENDING THE AMERICANS WITH DISABILITIES ACT TO REQUIRE NOTICE PRIOR TO FILING LEGALACTION On February 3, 2005, in the City of Lodi, San Joaquin County, California, I deposited in the United States mail, envelopes with first-class postage prepaid thereon, containing a transmittal letter and resolution supporting legislation amending the Americans with Disabilities Act to require notice prior to filing legal action, marked Exhibit "A; said envelopes were addressed as is more particularly shown on Exhibit" B attached hereto. There is a regular daily communication by mail between the City of Lodi, California, and the places to which said envelopes were addressed. declare under penalty of perjurythat the foregoing is true and correct. Executed on February3, 2005, at Lodi, California. ORDERED BY: JACQUELINE L. TAYLOR DEPUTY CITY CLERK KARI J. CHADW ICK ADMINISTRATIVE CLERK Forms/dormail.doc ORDERED BY: SUSAN BLACKSTON CITY CLERK, CITY OF LODI JENNIFER M. PERRIN DEPUTY CITY CLERK CITY COUNCIL JOHN BECKMAN, Mayor SUSAN HITCHCOCK, Mayor Pro Tempore LARRY D. HANSEN BOBJOHNSON JOANNEMOUNCE Interested Parties: CITY OF LODI CITY HALL, 221 WEST PINE STREET P.O. BOX 3006 LODI, CALIFORNIA 95241-1910 (209)333-6702 FAX (209)333-6807 cityclrk@ lodi.gov February 3,2005 BLAIR KING, City Manager SUSAN J. BLACKSTON City Clerk 0. STEPHEN SCHWABAUER City Attorney EEXIBIT A RE: Resolution supporting legislation amending the Americans with Disabilities Act to require notice prior to filing legal action Please find enclosed a certified copy of Resolution No. 2005-23 supporting legislation amending the Americans with Disabilities Act to require notice prior to filing legal action, which was adopted by the Lodi City Council at its meeting of February2, 2005. Should you have any questions, please do not hesitate to contact our office or the City Attorney's Office at (209) 333-6701. Sincerely, Susan J. Blackston City Clerk SJBIJMP Enclosure cc: City Attorney Community Development foHowup/IADAsuppon.doc RESOLUTION NO. 2005-23 A RESOLUTION OF THE LODI CITY COUNCIL SUPPORTING LEGISLATION AMENDING THE AMERICANS WITH DISABILITIESACT TO REQUIRE NOTICE PRIOR TO FILING LEGAL ACTION WHEREAS, the Americans with Disabilities Act gives civil rights protection to individuals with disabilities similar to those provided to individuals on the basis of race, color, sex, national origin, age, and religion; and WHEREAS, the Americans with Disabilities Act guarantees equal opportunity for individuals with disabilities in public accommodations, employment, transportation, state and local government services, and telecommunications; and WHEREAS, the City of Lodi supports the goals of this landmark civil rights law and the original intent of the Americans with Disabilities Act because it provides equal access opportunities for all Americans; and WHEREAS, since the enactment of the Americans with Disabilities Act, many abuses have been perpetrated against property owners by a few unscrupulous attorneys seeking to wage economic retribution upon property owners using the guise of a well-intentioned civil rights law. Unfortunately, it is not the goal of these few attorneys to improve accessibility for the disabled, but to exact financial punishment through lawsuits: and WHEREAS, legislation has been introduced by California State Assemblyman Tim Leslie (AB 2594) and by U. S. Congressman Mark Foley (H.R. 728) that would amend the Americans with Disabilities Act to require, as a precondition to commencing a civil action with respect to a place of public accommodation or commercial facility, that an opportunity be provided to correct alleged violations. NOW, THEREFORE, BE IT RESOLVED that the Lodi City Council hereby supports the adoption of legislation that would require notice prior to filing legal action for violations of the Americans with Disabilities Act since it would curtail the abusive practice of certain attorneys by providing a due process provision for property owners so that they may be in full compliance with the Act; and BE IT FURTHER RESOLVED that, upon passage, the City Clerk shall deliver this Resolution to the League of California Cities, Central Valley Cities, the Governor's office, and to the California and Federal Legislative Delegation. Dated: February2,2005 — ------------- hereby certify that Resolution No. 2005-23 was passed and adopted by the City Council of the City of Lodi in a regular meeting held February2, 2005, by the following vote: AYES: COUNCIL MEMBERS— Hansen, Hitchcock, Johnson, Mounce, and MayorSeckman NOES: COUNCIL MEMBERS— None ABSENT: COUNCIL MEMBERS — None ABSTAIN: COUNCIL MEMBERS—None SUSAN J. BLACKSTON City Clerk 2005-23 1EXHIBIT B1 RESOLUTION SUPPORTING LEGISLATION AMENDING THE AMERICANS WITH DISABILITIES ACT TO REQUIRE NOTICE PRIOR TO FILING LEGAL ACTION MAILING LIST League of California Cities 1400 K Street, Suite 400 Sacramento. CA 95814 Governor Arnold Schwarzenegger State Capitol Building Sacramento, CA 95814 Assemblyman Tim Leslie State Capitol Room 4164 Sacramento, CA 94249-0004 Robert Schultz, City Attorney City of Morro Bay 955 Shasta Avenue Morro Bay, CA 93442 Barbara Boxer U.S. Senator 112 Hart Senate Office Building Washington, D.C. 20510 Dianne Feinstein U S . Senator 331 Hart Senate Office Building Washington, D.C. 20510 Charles Poochigian California State Senator 4974 E. Clinton, Suite 100 Fresno, CA 93727 Greg Aghazarian California State Assemblyman 4557 Quail Lakes, Suite C-3 Stockton, CA 95207 Alan Nakanishi California State Assemblyman 218 W. Pine Street Lodi, CA 95240 Richard Pombo U S . Congressman 2495 W. March Lane, Suite 104 Stockton, CA 95207 Steve Schwabauer City Attorney City of Lodi Konradt (Rad) Bartlam Community Development Director City of Lodi Mr. Thomas N. Hallinan. City Attorney Mr. Gregory Diaz, City Attorney Cities of Oakdale and Riverbank City of Merced P.O. Box 486 676 West 18th Street Oakdale, California 95361 Merced, California 95340 Mr. Salvador Navarrete. Esq. City of Atwater Allen, Polgar, Proietti & Fagalde 1640 N St.,#200, P.O. Box 2184 Merced. California 95340-4657 Mr. John Brinton, City Attorney City of Manteca clo McFall, Burnett & Brinton 165 St. Dominics Drive, #202 Manteca, California 95376-7800 Mr. Richard Nosky, City Attorney City of Stockton 425 N. EI Dorado Street Stockton, California 95202 Mr. Thomas P. Hallinan, City Attorney Mr. Randy Risner, Partner Cities of Newman and Livingston P. 0. Box 486 Oakdale. California 95361 Neumiller& Beardslee Mr. Bill Vaughn, City Attorney City Attorneys for City of Hughson City of Los Banos Attn: John Stovall/DeeAnne Watkins 525 J Street, Suite A P. 0. Box 20 Los Banos, California 93635 Stockton. California 95201-3020 Mr. Michael Milich, City Attorney City of Modesto P. 0. Box 642 Modesto, California 95353 Mr. Tom Terpstra, City Attorney City of Ripon 2291 W. March Lane, #B-100 Stockton. California 95207 Mr. George Logan, City Attorney City of Patterson 2669 Alabama Atwater, California 95301 Mr. Richard Matranga, City Attorney Cities of Sonora and Angels Camp P. 0. Box 242 Sonora, California 95370 [EUXH-181-T ff Mr. William Gnass, City Attorney City of Waterford 700 Loughborough Drive, #D Merced. California 95348 Mr. Kevin F. Kelley. Int. City Attorney City of Gustine, c/o Berliner, Cohen 723 W. 191h Street Merced. California 95340 Mr. Michael Lyions, City Attorney City of Ceres c/o Rushing, Lyions &Anderson 125 McHenry Avenue Modesto. California 95354-0451 Mr. Richard C. Burton, City Attorney City of Turlock 156 South Broadway, Suite 240 Turlock. California 95380-5454 Debra E. Corbett. City Attorney City of Tracy 325 East Tenth Street Tracy, California 95376 Mr. Stephen Schwabauer, City Attorr Mrs. Janice Magdich, Dep.City Attorr City of Lodi P. 0. Box 3006 Lodi, California 95241 RESOLUTION SUPPORTING LEGISLATIONAMENDING THE AMERICANS WITH DISABILITIES ACT TO REQUIRE NOTICE PRIOR TO FILING LEGAL ACTION MAILING LIST I 1._nr CiLf1n City of Morro Morro Bay, CA 4411- Bay �- �;��.�N���,o 93442 • 805-772-6200 JAN 0 4 2004' OFA a nF J CITY ATTORNEYS OFFICE December 21,2004 "Y". ` t A.1 --L- —L, U•1 �p� v�. c� Dixon Flynn Lodi City Manager P.O. Box 3006 Lodi, CA 95241-1910 Re: Requestfor supportfor legislation that would amend the Americans with Disabilities Act to require noticeprior toftling a lawsuit. Dear City Manager: This correspondence is being sent to you at the direction of the City Council for the City of Morro Bay to solicit your support for legislation that would amend the Americans with Disabilities Act and California State Access laws to require notice prior to filing a lawsuit. As you may know, the City of Morro Bay is located on the Pacific Coast of California about half way between San Francisco and Los Angeles near Hearst Castle and the Big Sur Coast. The City of Morro Bay is a working fishing village and the local fishing industry is one of the most important along the California Coast. The City is a pleasant tourist destination with shops, restaurants and hotels along the coastline and within several blocks of the primary streets. The Embarcadero, which runs along the waterfront, includes art galleries, tourist gift shops, surf and sport shops and dozens of restaurants. The City of Morro Bay has grown very little in the past 20 years, and as of 2000, there are 10,350 people residing in the City. There are absolutely no national chains in the City of Morro Bay except grocery stores and fast food chains. All of the shops and restaurants are locally owned and operated and are considered "Mom & Pop" shops. In 2002, litigation was filed against the City for alleged violations of the Americans with Disabilities Act (ADA) and State Access laws. The City quickly settled a portion of the lawsuit by agreeing to spend $75,000 on ADA improvements over the next five years. The City was unable to settle the portion of the lawsuit dealing with attorneys' fees as plaintiffs attorneys demanded approximately $200,000. The Court recently reduced the amount of the attorneys' fees to $54,000; however, plaintiffs attorney is appealing the decision. In 2004, litigation was filed against 16 locally owned and operated restaurants in Morro Bay for alleged violations of ADA. All of the lawsuits are identical and have been filed by the same plaintiff and attorney. These lawsuits have had a tremendous impact on the Community. Two of ADMINISTRATION 595 Harbor Street CITY ATTORNEY 955 Shasta Avenue FINANCE DEPARTMENT 595 Harbor Street HARBOR DEPARTMENT POLICE DEPARTMENT PUBLIC SERVICES 1275 Embarcadero Road 870 Morro Bay Boulevard 955 Shasta Avenue FIRE DEPARTMENT 715 Harbor Street RECREATION & PARKS 1001 Kennedy Way Request for Support - ADA December 21,2004 the restaurants have had to close their doors as they did not have the financial ability to fight the allegations. The 14 -year-old Americans with Disabilities Act is a good law. Unfortunately, the intent and spirit of the Americans with Disabilities Act of 1990 is being abused by a growing number of attorneys. Without giving small business owners an opportunity to remedy the alleged violations, these attorneys are filing lawsuits for minor technical access violations. Fearing the time, hassle and expense of lawsuits, small businesses are being forced into cash settlements —most of which goes to the attorneys. By creating a multitude of cases, these attorneys are generating substantial amounts of income for themselves at the expense of small businesses. To help rectify this problem, Congressman Mark Foley (R -FL) introduced the ADA Notifleation Act (H. R. 728), which amends the Americans with Disabilities Act of 1990 to deny jurisdiction to a court in a civil action for remedies unless the complainant has implemented specified notification procedures that include opportunity for correction of the alleged violation. At the State level, Assemblyman Tim Leslie (Tahoe City) has introduced similar legislation. AB 2594 Public accommodations: persons with disabilities would allow a person who hires an ADA specialist to review the design and construction of the person's premises to have a Certificate of ADA Compliance. Holders of such a certificate would be entitled to notice and the opportunity to correct future ADA violations before a civil lawsuit could be filed. Congressman Foley's and Assemblyman Leslie's legislation would curtail the abusive practice of certain attorneys filing lawsuits for easily correctable ADA infractions and would enable small businesses to work with the disabled community to correct minor violations and improve accessibility for the disabled. In effect, passage of this legislation would tip the balance back to accessibility and back to the disabled and away from the lawyers. Recently our City Council passed the enclosed resolution and directed Staff to notify other jurisdictions and solicit support in our endeavor to seek an amendment to the Americans with Disabilities Act to require notice prior to filing a lawsuit. Thank you for your assistance. Sincerely, Robert Schultz City Attorney RESOLUTION NO. 68-04 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MORRO BAY SUPPORTING LEGISLATION AMENDING THE AMERICANS WITH DISABILITIES ACT TO REQUIRE NOTICE PRIOR TO FUMG LEGAL ACTION THE CITY COUNCIL City of Morro Bay, California WHEREAS, the Americans with Disabilities Act gives civil rights protection to individuals with disabilities sidlarto those provided to individuals on the basis ofrace, color, sex, national origin, age, and religion; and WHEREAS, the Amerieaxts with Disabilities Act guarantees oqual opportunity for individuals with disabilities in public accommodations, employment, transportation, state and local government services, and telecommunicatiorns; and WHEREAS, the City of Morro Bay supports the goals of this landmark civil rights law and the original intent of the Americans with Disabilities Act because it provides equal access opportunities for all Americans; and WHEREAS, since the enactment of the Americans with Disabilities Act many abuses have been perpetrated against property owners by a few unscrupulous attorneys seeking to wage economic retribution upon property owners using the guise of a well-intentioned civil rights law. Unfortunately, it is not the goal of these few attorneys to improve accessibility for the disabled, but to exact financial punishment through lawsuits; and WHEREAS, legislation has bem introduced by California State Assemblyman Tim Leslie (AB 2594) and by U.S. Congressman Mark Foley (Ii.R. 728) that would amend the Americans with Disabilities Act to require, as a precondition to commencing a civil action with respect to a place of public accommodation or commercial facility, that an opportunity be provided to correct alleged violations. NOW , TEEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF MORRO BAY that taus Council supports the adoption of legislation that would require notice prior to fUkg legal action for violations of the Americans with Disabilities Act since it would curtail the abusive poetice of certain attorneys by providing a due process provision for property owners so that they may be in full compliance with the Act. BE IT FURTF ER RESOLVED that upon passage, the Chi Clerk shall deliver this Resolutionto the League of California Cities, omb al Coast Cities, the Governor's office, and to the California and Federal Legislative Delegation. PASSED AND ADOPTED by the City OmncU of the City of MOM, Bay at a regular rnaeI thereof held on the 276 day of Septedoer, 2004 on the following vote: AYES: Elliott, Peirce, Rte, 9Vinholtz, Yates NCES : None ABSENT: None _ _ - 4 11. ATTEST