SOME RELIEF FROM ABUSIVE DISABILITY ACCESS LAWSUITS

It often started with a visit to your business that you were unaware of. An individual with a disability recognized by the American with Disabilities Act ("ADA") would show up unannounced with a camera and a tape measure. He or she would measure counter heights, distances between tables and chairs, count "handicapped" parking spaces and, often, document their visit with photographs. The first you would know of it would be the service of a summons and complaint alleging that you had violated the ADA. In many cases, the business owner had no prior knowledge that the business was out of compliance and were willing to address the problem promptly upon becoming informed. They would soon discover, however, that the cost to fix these violations was often dramatically exceeded by the amount the aggrieved plaintiffs wanted in damages and their attorneys demanded for fees.

After years of protests from California business and property owners who had been the object of thousands of these lawsuits, the California Legislature has finally provided them some relief. Senate Bill 1186 signed into law by Governor Brown in September 2012 as an urgency measure (so it took immediate effect) has imposed some serious new constraints on those professional ADA plaintiffs. SB 1186 (enacted as Civil Code §§ 55 et. seq.) provides:

Pre-litigation Demand Letters. Any attorney who sends a pre-litigation "Demand Letter" (not required by the law) must now: (a) identify the specific access barriers encountered; (b) describe how each barrier interfered with access; and (c) identify each date the barrier was encountered. Such a letter cannot make a demand for money and must advise the recipient of its rights. The attorney must identify him or herself as an attorney, include his or her State Bar number, and they must notify the State Bar and the California Commission on Disability Access of the Demand Letter. Civil Code §§ 55.3-55.32.

Certification for Access Specialists and CASp Inspections. A certification process is established for "Certified access specialists" or "CASp" who can inspect and determine whether a property meets standards or has been corrected to meet all applicable construction-related accessibility standards. Civil Code §§ 55.51, 55.52, 55.53. If a CASp report is obtained before the alleged discriminatory incident of which the plaintiff is complaining, there is an opportunity to reduce the minimum statutory damages. The new law also requires all commercial property owners for properties leased after July 1, 2013 to disclose to their tenants whether the property has undergone a CASp inspection and if there were any ADA violations detected. Civil Code § 1938.

Verified Complaints and Concurrent Notice to Defendant. Any lawsuit alleging a construction related accessibility claim must be verified by the plaintiff as true under penalty of perjury. When serving the lawsuit, an attorney must also give the defendant an advisory notice informing the recipient of certain rights related to the construction-related accessibility claim, including: (a) the right to seek a Court stay of the lawsuit; (b) the potential to have the minimum statutory damages reduced to $1,000 for each offense if a CASp report was obtained or the construction occurred after January 1, 2008; and (c) its rights as a small business owner. Civil Code §§ 55.54-55.545.

Limits on Damages. To be eligible for statutory damages, a plaintiff claiming a violation of one or more construction-related accessibility standards must show that he or she was denied "full and equal access to the place of public accommodation on a particular occasion." Civil Code § 55.56. The new law limits those damages to a minimum of $1,000 where any violation is corrected within 60 days of service of the complaint if: (a) the property was CASp inspected or found to "meet applicable standards" some time before the plaintiff was allegedly denied full and equal access; (b) the property was the subject of an inspection report indicating "CASp determination pending" or "Inspected by a CASp" and the defendant had either implemented corrective measures or was in the process of correcting any alleged violation some time before the plaintiff was allegedly denied full and equal access; and (c) the alleged violation relates to new construction or improvement that was approved after January 1, 2008 and remained unmodified before the plaintiff was allegedly denied full and equal access. In other cases, the amount of liability will be reduced to a minimum of $2,000.00 if the defendant has corrected all construction related violations that are the basis of the claim within thirty (30) days of being served with the complaint and the business is a "small business." (A "small business" is defined as having 25 or fewer employees and no more than $3.5 million in gross receipts). Civil Code § 55.56. Plaintiffs who claim multiple violations arising from multiple visits to the same location may also be limited in their efforts to "stack" those claims.

Limitations on Attorney's Fees and Costs. The Court may now consider settlement offers made and rejected by the plaintiffs in determining the reasonableness of an award of attorney's fees and costs. Civil Code § 55.55.

A Word to the Wise. Property owners and tenants who operate businesses open to the public should consider contacting a Certified Access Specialist to insure that they are in compliance with the ADA and to be able to minimize their risk associated with future ADA claims. If you are sued, promptly contact a law firm with experience in ADA compliance and litigation (such as Poole & Shaffery, LLP) to protect your interests.