California's business climate suffered another blow last week when the Senate judiciary committee killed SB 855, a measure that would have closed another loophole for unscrupulous attorneys who shake down California’s small businesses.

Authored by Senator Charles Poochigian, the measure required disabled individuals to provide business owners with notification of Americans with Disability Act (ADA) violations before pursuing legal action. The ADA mandates that businesses make structural accommodations to provide access for disabled patrons.

Although required by law, the ADA’s complexity and numerous specifications render complete conformity nearly impossible. Many small business owners are often innocently unaware of violations. SB 855 would have provided a 120-day window to fix the infringement without the threat of extensive litigation, although the owners would still be liable for actual physical damages during this period. If the owner fails to correct the violation, then the aggrieved party can sue for punitive damages.

By allowing business owners to take care of the problem first, this sensible reform would have unclogged the state’s courts from costly and prolonged lawsuits. According to Senator Poochigian, there were 2,231 ADA lawsuits filed in California’s U.S. District Courts last year, up from just 780 in 1999. But on a 3-2 vote on May 3, the Senate judiciary committee shot down the proposal, to the delight of the attorneys lobby.

Since the ADA was adopted, attorneys have secured themselves a niche by going after businesses for even the most minor infractions. Like ants to a picnic, trial lawyers have found sustenance in accessibility lawsuits. Boosted by a California law allowing them to collect contingency fees in ADA suits, attorneys have developed a lucrative racket suing businesses for low handicap signs and wrong-sided toilet handles. Many small business owners often capitulate and shell out a few thousand dollars to avoid an expensive court battle.

Accessibility suits have become so profitable that attorneys actively search out businesses with ADA infractions without the grievance of a disabled patron, an act known in the business community as “drive-by” lawsuits. SB 855 would have ended this tactic, insuring that accessibility lawsuits target business owners truly hostile to disabled customers. Unfortunately, such lawsuit abuse lingers because of the trial lawyers’ tremendous influence in Sacramento.

According to Trial Lawyers Inc.: California, a study conducted by the Manhattan Institute, California’s trial lawyers contributed $5 million to Democratic legislative candidates between 2003 and 2004. They got what they paid for. According to the study, California’s legal climate ranks 45th in the nation in terms of fairness to business. The Golden State also claims the worst and third-worst local jurisdictions in the country, Los Angeles and San Francisco.

With the trial lawyers’ political muscle apparent in the State Capitol, legal reformers may have no choice but to stop the shakedowns through a ballot initiative, much like they did in November with Proposition 64. Adopted by 59 percent of voters, that measure closed a loophole that allowed lawyers, without a client, to sue a business proprietor under California’s Unfair Business Competition Law.

The Americans with Disabilities Act was enacted to benefit the disabled, not rapacious litigants. As the cost of lawsuit abuse in California reaches upwards of $29 billion a year, the state cannot afford to let practical reforms like SB 855 slip by. If the state's business climate is to be restored, legislators must close this loophole for shake-down lawsuits.