Originally Published: April 16, 2017 5:50 a.m.
PHOENIX — The state House voted 38-20 Thursday to curb the ability of the disabled and their advocates to sue businesses for violations of laws requiring accessibility.
SB 1406 is designed to end what has become a cottage industry of litigation as a small group of attorneys has filed suit against businesses over violations but then agrees to settle for some cash payment, whether or not the problem is fixed.
There were so many lawsuits pending at one point that Attorney General Mark Brnovich interceded and convinced a judge to consolidate them, eventually getting them thrown out. SB 1406 is designed to deal with future litigation.
But several legislators questioned whether the proffered fix, which now goes to the Senate, goes too far, putting those who are denied access because of physical barriers at a distinct disadvantage in getting businesses to finally comply with the Arizonans with Disabilities Act.
One key provision gives businesses at least 30 days — and in many cases more — to fix a problem before a lawsuit could be filed. That drew derision from Rep. Sally Ann Gonzales, D-Tucson, who said proponents are being insensitive to the needs of those with disabilities.
“All they ask for is accessibility to anything that you or I as able bodies would be able to do, whether it’s attending a social event, whether it’s seeking a doctor, whether it’s going to the bathroom,’’ she said. More to the point, Gonzales said it’s not like these are new mandates pointing out that the requirements for accessibility have been part of Arizona law for 27 years.
“I think it is wrong for us to be giving cure times to businesses,’’ she said.
But House Speaker J.D. Mesnard, R-Chandler, who added that language, said it strikes a “proper balance’’ between the rights of the
disabled and the interests of business.
There had been a consensus among all sides that suing first and making settlement demands was not helpful to those the attorneys said they were representing.
Rep. Don Shooter, R-Yuma, came up with a compromise, including a requirement to notify a business and give it 30 days to fix the problem. Only if the business failed to comply at that point could a lawsuit be filed.
That was not enough for Mesnard.
The language he tacked on does not require an actual fix in 30 days but simply a “corrective action plan’’ if the repairs would require obtaining a building permit. And only 60 days after that corrective plan is provided could a lawsuit be filed.
And if there’s a delay in getting the permits, then that does not count toward the 60 days.
Rep. Kristen Engel, D-Tucson, said the legislation acts as a perverse incentive to businesses to not bother to fix problems until someone files a claim.
“Maybe they know that it is a requirement that they can fix in the 30-day period,’’ she said.
“But it’s still an expense,’’ Engel continued. “It’s just easier to wait to see if somebody sues you.’’
Mesnard brushed aside the concern.
“Maybe you think there’ll be that rampant, flippant carelessness in the business community,’’ he said. “I seriously doubt it.’’
Anyway, Mesnard said he’s willing to revisit the issue in future years if that becomes the pattern under the new law.
Rep. Randall Friese, D-Tucson, had similar concerns.
“If a business knows they’re out of compliance, shouldn’t they then immediately come into compliance?’’ he asked. “Why must they wait to be sued and then yet have another cure period to meet compliance?’’
“Do they all know they’re out of compliance?’’ Mesnard responded.
“I would suspect that they don’t want to be sued,’’ he continued. “It’s more likely they don’t know they’re out of compliance and if they’re out of compliance it’s accidental.’’
And Mesnard denied that this is somehow allowing businesses to ignore their legal obligations.
“What this is trying to say is when those small things pop up we’re going to give a short cure period,’’ he said. “After that, throw the book at them.’’