Law Review: Significant change in ADA law proposed
March 9, 2018
Congress adopted the Americans with Disabilities Act in 1990, guaranteeing access for everyone to facilities open to the public, i.e. businesses and public buildings. We've written positively about the Act over the years.
Interestingly, if someone claims a violation of federal ADA law, the remedy is to sue to force compliance, e.g. make the entrance ramp less than 2 percent or install proper ADA signage in the parking lot. There is no right to sue for money damages under federal ADA law.
California has its own version of ADA law found in the Disabled Persons Act and the Unruh Civil Rights Act.
... the goal of the law is to make businesses and other public facilities available to all persons, not to make a handful of plaintiffs and their lawyers rich.
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California's mandates are essentially identical to federal law – memorialized in thousands of pages of detailed specifications. However, California allows a disabled plaintiff to sue for money damages, provided the plaintiff gives advance written notice to the property owner and an opportunity to fix the alleged ADA violation.
It is not easy to be fully compliant with so many specifications.
THE LEGAL LOOPHOLE
A handful of disabled plaintiffs, including the litigious Scott Johnson – whom our office has litigated against in dozens of lawsuits – sue in federal court asking for money damages under California law, arguing (successfully) that California's right-to-cure-following-notice requirement is not binding in federal court.
Indeed, California procedural law is not binding in federal court. The notice requirement is deemed procedural law while California's monetary damages are considered substantive law and therefore binding in federal courts.
These abusive plaintiffs "thread the needle" perfectly – suing in federal court for ADA violations, recovering California law damages, but avoiding California's requirement to give the owner notice and an opportunity to cure before a lawsuit may be filed.
A handful of plaintiffs have taken advantage of otherwise beneficial ADA laws.
NEW FEDERAL ADA LAW
In response to the plethora of abusive lawsuits in California, a bipartisan group in the House of Representatives has proposed HR 620, known as the "ADA Education and Reform Act."
The bill, which will require approval in the U.S. Senate, requires ADA plaintiffs to give written, specific notice of claimed ADA defects on the premises, with an obligation to respond to the plaintiff within 60 days and a duty to fix the alleged violations within 120 days.
If the property owner does not respond he/she may (appropriately) be sued, which in California means the court will order the ADA violations cured and money damages will be awarded to the plaintiff.
ARGUMENTS FOR AND AGAINST
I suggest HR 620 is an appropriate adjustment to federal ADA law. After all, the goal of the law is to make businesses and other public facilities available to all persons, not to make a handful of plaintiffs and their lawyers rich.
Critics of HR 620 argue the new law is "turning back the clock on disability rights." However, under existing federal law, the only way to force property owners to make their facilities ADA compliant is to sue and get a court order – very inefficient.
As California allows money damages it seems appropriate to follow California law, requiring advance notice and an opportunity to become compliant.
HR 620 requires the Justice Department to develop a program to educate state and local governments and property owners about ADA access and requires the U.S. Judicial Conference to develop a model program to promote alternative dispute resolution, like mediation, to resolve ADA claims. We'll see what happens when HR 620 makes it to the Senate.
Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee, Tahoe City, and Reno. Jim's practice areas include: real estate, development, construction, business, HOAs, contracts, personal injury, accidents, mediation and other matters. Contact him at firstname.lastname@example.org or http://www.portersimon.com.