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Grace period allows businesses to fix problems with access for people with disabilities
California has a new law intended to curb frivolous lawsuits brought against businesses under the Americans with Disabilities Act (ADA) and similar state laws. While Senate Bill 269, enacted May 10, does not eliminate the possibility of such lawsuits, the bill incorporates several important changes that the business community should take advantage of to protect against civil legal disputes.
The ADA and Its California Counterparts
Under the ADA, newly built or altered public commercial facilities must comply with extensive and often-changing building regulations referred to as the ADA Accessibility Guidelines. For facilities built before Jan. 26, 1993, the facility must comply with these guidelines as long as doing so would be "readily achievable,” which essentially means the modification is not unduly expensive or difficult.
California has its own state law counterparts to the ADA, as well as a separate building code regulating construction standards for disability access. Though similar in many ways, there are several key differences, the most notable of which is that, unlike the ADA, under California law an individual can recover $4,000 in statutory penalties for alleged violations of disability-access standards. A prevailing plaintiff is also entitled to attorney fees. The effect is that alleged violations of the ADA are often combined with California law claims, which allows for the recovery of statutory penalties of $4,000 and attorney fees for even the most trivial of violations.
Previous Laws’ Protections
Business owners have been complaining for years about disability-access lawsuits filed by plaintiffs more interested in a monetary settlement than increasing access for individuals with disabilities.
These lawsuits typically focus on hypertechnical issues that are often the subject of ever-evolving regulations, such as re-striping a parking space or installing appropriate signage. Businesses can be liable for statutory penalties for these small violations, even if efforts have been made to comply with the laws.
As a result, the California legislature has taken several measures to curb frivolous lawsuits over the years, while simultaneously incentivizing businesses to voluntarily comply with the ADA. Thus, even before Senate Bill 269, there was a period allowed for businesses to fix any alleged violations without incurring statutory penalties and an “access specialist program” to ensure businesses comply with the ADA and state access laws through the use of Certified Access Specialists (CASp). These specialists are state-certified inspectors who are hired by businesses to assess their compliance—and are a means through which businesses can obtain some modicum of protection against a lawsuit.
Provisions of the New Law
Senate Bill 269 is the legislature’s latest effort to provide businesses with protections against frivolous lawsuits and encourage voluntary compliance. In addition to making various changes to the CASp process and streamlining the permitting process for access-related construction, the law has two primary provisions that are designed to protect businesses and reduce lawsuits.
First change: A 15-day cure period for a business to remedy certain technical violations upon receipt of a civil lawsuit is provided, assuming the claim is based on one or more of the specified categories of technical violations. If the alleged technical violations are remedied during those 15 days, the plaintiff’s ability to recover statutory penalties is significantly reduced. These technical violations are listed by statute. They generally fall into one of the following categories, though there are exceptions:
Second change: The new law incentivizes certain businesses to seek out a CASp to conduct an inspection by providing that a business will have 120 days from the date of the inspection to remedy any access violations identified by the CASp. If during those 120 days the business is sued, the new law provides that the business will not be subject to statutory penalties. However, it is important to note that this protection only applies if the CASp inspection is conducted before a lawsuit is filed or before receipt of a demand letter (a letter stating a legal claim).
The major takeaway for a business is that if you receive a civil complaint alleging disability-access violations, you should immediately review it to determine whether the claim is based on one of the enumerated violations that can be cured within 15 days. To that end, all employees should be trained to promptly report the receipt of any civil complaint to management, as the time to cure will be ticking immediately upon receipt. Moreover, the legislature continues to expand the protections offered through the CASp program, and you should use Senate Bill 269 as an opportunity to review your compliance and determine whether there are any access issues that can be remedied relatively inexpensively.
Jeff Thurrell is an attorney in the Irvine, Calif., office of Fisher Phillips. Nathan Okelberry is an attorney in the Los Angeles office of Fisher Phillips.
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