By Catherine Hess

JUST A FEW years ago, small retailers in San Francisco began noticing a disturbing trend. Plaintiff attorneys had started using federal and state disabled-access laws to make an easy buck off local merchants. They would go around looking for building-code violations, such as doorways that were too narrow or shopping aisles that were too close together. Then they would file suit and push for a quick settlement. For hundreds of small businesses that weren't prepared for all this, the consequences cost them thousands of dollars.

To confront this situation, a community coalition formed to protect shopkeepers from litigation while at the same time asserting that access to public spaces is a civil right. The San Francisco Collaborative, a partnership between the San Francisco Small Business Commission (SBC), the Small Business Network, and the Independent Living Resource Center San Francisco (ILRC), emerged in January 2003 to help businesses draw up plans for getting up to code.

Recognizing that such planning involves surveyors, architects, and contractors (i.e., lots of money), the collaborative raised about $100,000 with the help of a matching grant from the Public Entity Risk Institute. It also collected information about tax credits for access-related construction and spread the word through a massive outreach effort.

But to date, only a handful of small businesses has signed up for help from the collaborative. From a merchant's perspective, it could cost thousands of dollars to comply with the Americans with Disabilities Act (ADA) and Title XXIV of the California Building Code. For some, a grant from the collaborative would only bring down that cost, but it wouldn't eliminate it. Other small-business owners believe they might be able to get by if they can just wait for this wave of lawsuits to subside.

Scott Hauge, owner of Cal Insurance and Associates and founder of the collaborative, is quick to point out it's shortsighted to dismiss the lawsuits against small retailers. "The disabled community is pissed, and they have every right to be," he said. "Small business has to get their head out of the sand, and they have to try to address the concerns of the disabled community, or they're going to bring on more lawsuits."

Like Hauge, many see the lawsuits as an opportunity to drive home the message that providing access for disabled customers goes beyond simple altruism. When faced with the threat of settlements, lawyers' fees, court costs, and building renovation, it amounts to financial common sense. Litigation can be a lot more taxing on a small retailer's resources than the cost of getting up to code.

"We estimate that we contacted 1,500 businesses in one way or another," said Herb Levine, executive director of the ILRC. But he told us businesses didn't see ADA lawsuits as a real threat. In fact, Levine said he knows of two attorneys who were responsible for hundreds of lawsuits filed in the Bay Area and elsewhere.

On Jan. 7, Levine stood before the SBC to provide grim testimony: merchants in San Francisco don't want to make their businesses ADA-compliant. In fact, a report the collaborative presented to the SBC reads, in bold print, "Small businesses appear unwilling to act in the absence of a 'hammer' such as litigation or fines." The report also states that such reluctance seems financially motivated and that there's "very little overt negative feeling about people with disabilities."

"We came to these conclusions very reluctantly," Levine said. "Litigation results in more access than our attempt to collaborate."

Although Levine doesn't endorse litigation as a means to making businesses more disability-friendly, he stated that the collaborative will "stop casting aspersions on those that sue." That's a major change from his original belief that small businesses would be receptive to risk management and information about liability.

"If you are a small business, do you want the bad news from us or from an attorney?" Levine said. "[Attorneys] don't care if you go bankrupt from the settlement, and you're still liable for any changes."