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Bill Seeks to Reduce Liability for Disability Violations

Senate Bill 251, approved by the state Legislature last week, would give businesses that pay for a Certified Access Specialist inspection a 120-day window to remedy construction-related disability violations without being liable for minimum statutory damages.

Proponents, which include more than 40 chambers of commerce and hotel associations, say the bill promotes compliance over damage awards and would curb abuses by plaintiff’s attorneys.

Opponents, including the American Civil Liberties Union of California, decried the proposal for offering businesses temporary freedom from liability and denying disabled customers the statutory damages to which they are entitled.

While the federal American Disabilities Act of 1990 does not allow damages in suits brought by individuals, California law considers ADA violations to also violate the state’s Unruh Civil Rights Act and Sections 54 and 54.1 of the Civil Code.

Plaintiffs can recover actual damages plus treble actual damages, or no less than $4,000 for construction-related disability violations.

California’s 3.3 million small businesses can get minimum statutory damages reduced to $2,000 if they fix any violations within 30 days of receiving a complaint.

Even the reduced amount can put a struggling small mom-and-pop shop out of business instead of promoting compliance, attorneys said.

“There is a tremendous problem in California caused by a very small number of lawyers who file hundreds of these ADA lawsuits each year for the sole purpose of shaking down business owners and extracting relatively small amounts of money – $3,000 or $5,000 – in exchange for dismissing lawsuits,” said Brian S. Kabateck, a partner at Kabateck Brown Kellner LLP and a past president of Consumer Attorneys of California, which co-sponsored the bill.

According to the California Commission on Disability Access, which delivers a report on construction-related accessibility suits to the Legislature each summer, more than half of the 5,400 complaints lodged in the last two years were filed by just two law firms, which were unnamed in the report. Nearly half of those suits were filed by the same 14 plaintiffs.

SB 251 also calls for attorneys to face discipline charges if they demand payment in exchange for dropping a suit, or if they fail to copy the State Bar on every demand letter sent to businesses for alleged violations.

“We also recognize that 25 years after passage there are still problems with ADA compliance,” Kabateck added. “Our hope is that SB 251 is a step forward to ensure businesses who are doing the right thing by having their properties inspected have some level of [legal] protection and won’t get sued while trying to do the right thing.”

In 2003 California’s division of the State Architect introduced a voluntary program where businesses could pay to have a Certified Access Specialist inspect their premises for federal and state compliance on accessibility standards.

Electing to conduct such an inspection was pitched as a good faith showing for businesses that could reduce their liability in court should a suit be brought against them.

If signed, SB 251 would enshrine that benefit into law, and then some. The bill creates a class of violations deemed to be “purely technical” that would not be considered violations if certified businesses fixed them within 15 days of being served a complaint. Examples include not having proper signage showing where disability-accessible facilities are located, not having color-striped spaces for handicapped parking, or not having speed bumps and other warning surfaces on ramps.

For more serious violations like not having a wheelchair ramp at all, inspected businesses would have four months to bring their premises up to code and receive a tax credit for the necessary construction expenses.

Disability rights advocates objected to the “technical violation” label and pointed out that even minimal violations can cause injury that should be remedied with a minimum statutory damage.

A separate proposal also passed this month which has not been presented to the governor, AB 1521.

The bill proposes a different approach to curbing profit-motivated disability suits.

Rather than preventing statutory liability for businesses, AB 1521 instead calls for upping the filing fees and enacting more stringent pleading requirements for high-frequency litigants or lawyers who file more than 10 such suits per year.

Gov. Jerry Brown has until Oct. 11 to veto SB 251 before it becomes law.

By American Hernandez

Daily Journal

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