SB 1186 - California Disability Law Provides Minimal Help to Businesses (ADA)
SB 1186, California’s new law targeting disability access lawsuits, provides minimal assistance to business owners. Although hailed by its sponsors, Senators Dutton and Steinberg, as a reform for what business owners describe as Americans with Disabilities Act (ADA shakedown lawsuits, the law is far more limited than many believe. A summary of the major provisions of the law are provided below.
First, the law provides special protections for businesses in locations that were built after January 1, 2008, or those that have received a Certified Access Specialist (CASp) inspection. For these businesses, they will be provided 60 days to fix an alleged violation. Moreover, the business’ statutory damages may be reduced from $4,000 to as low as $1,000 “for each offense” if the alleged violations are cured within a certain time period. The vast majority of defendants named in these lawsuits have buildings that pre-date 2008 and have not undergone the costly CASp certification, meaning these new provisions will be of no assistance.
Second, small businesses, defined as those with 25 or fewer employees, that have not had a CASp inspection will have “30 days [from] the complaint being served upon the defendant” to fix the violation. If this repair occurs, the damages are reduced from $4,000 to a “minimum of” $2,000 “for each offense.” This is of no assistance to most defendants, as the complaints often allege multiple violations, but can be settled for less than the statutory damages that would be obtained the plaintiff if the matter proceeds to litigation ($2,000 x the number of violations).
Third, the law ends “demand for money” letters from attorneys, meaning a lawyer can still send a letter, but no monetary demand can be enclosed therewith. Moreover, all demand letters sent to a business alerting them of a potential violation or infraction must be sent to the California State Bar. In turn, the State Bar will examine the letter to ensure that it meets the requirements of the law, including the requirement of a notification that the recipient has certain rights. Plaintiffs can escape this rule by simply filing a complaint in superior court and serving it on the defendant as its “demand” letter. Doing so may be of little cost for the plaintiff’s law firm as the disabled plaintiff often qualifies for a waiver of filing fees based on their income. As such, the only added cost to the plaintiff’s law firm is the drafting of a complaint, rather than the a more simple demand letter.
Fourth, the new law provides an avenue for local cities and counties to expand the Certified Access Specialist (CASp) program in their communities to help bring local businesses into ADA compliance and develop tools to help educate the business community in expanding ADA access. Although this is a commendable effort, most business owners are unlikely to take advantage of such assistance until they are named as a defendant in a lawsuit, at which time it is too late.
Overall, SB 1186 is far more limited than business owners and business lawyers may believe. Specifically, business owners hoped for a period after notification of a violation within which to cure the violation without a fine or the threat of attorney’s fees. The law provides no such relief, ensuring that this form of legalized extortion will continue.
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