Jim Porter: New laws OK’d to address prolific ADA lawsuits (opinion)
The California Senate and Assembly unanimously passed fairly significant changes to California’s Americans with Disabilities Act (ADA) that go into effect immediately as an urgency statute.
The votes on both sides of the Legislature were unanimous, in part because the changes were supported by business groups and trial lawyers, which does not often happen. Here’s a summary.
‘Highly Litigious Plaintiffs’
One of my favorite parts about these changes to the Civil Code is the following quote right out of the Code: “Recent data from the California Commission on Disability Access indicates that a handful of highly litigious plaintiffs and attorneys have targeted small businesses in the state, especially those without financial resources or sophistication, with lawsuits alleging violations of construction-related accessibility standards. The lawsuits appear to be motivated by a desire to obtain quick cash settlements with the businesses, rather than to improve access to public accommodations. As a result, small businesses are justifiably anxious about being sued, while disabled consumers are viewed with blame and suspicion…”
There ain’t no one going to argue with that.
Existing ADA Laws
Federal and State ADA laws require public and commercial buildings open to the public to make new construction and existing facilities accessible to persons with disabilities.
California’s law provides monetary penalties. Federal law does not. Existing law essentially specifies that a violation of these construction-related accessibility standards, detailed in thousands of pages, causes an ADA-plaintiff to experience “difficulty, discomfort, or embarrassment.”
The new changes establish a presumption that certain relatively minor “technical violations” do not cause an ADA-plaintiff to experience difficulty, discomfort or embarrassment sufficient to entitle the plaintiff to an award of monetary damages — if certain conditions are met.
Application of New Law
The new ADA changes in California apply to small businesses that employ 25 or fewer employees and have average annual gross receipts of less than $3.5 million over the previous three years.
Also, the defendant must correct within 15 days of the service of a lawsuit or receipt of a written notice of violation from the plaintiff, whichever is earlier, all of the technical violations that are the basis of the ADA claim. The third leg of the requirement is that the plaintiff’s claim must be based on one or more defined “technical violations.”
The technical violations that are presumed insufficient to allow a plaintiff to recover in an ADA lawsuit include the following: interior signs (other than directional signs or signs that identify accessible parts of the facility); the lack of exterior signs, other than parking signs and directional signs; the order in which parking signs are placed or the exact location or working of parking signs; the color of parking signs; the color of parking lot striping; faded, chipped, damaged or deteriorated paint in otherwise fully compliant parking spaces and passenger access aisles; and the presence or condition of detectable warning surfaces on ramps, except where the ramp is part of a pedestrian path of travel that intersects with a vehicular lane or other hazardous area.
These modifications are long overdue. A welcome relief for small businesses who have been victimized by a handful of ADA plaintiffs. It is my opinion that the elimination of these technical violations is a change in California’s substantive law which means they are also binding on federal courts, which is important.
The new laws are not applicable to businesses with more than 25 employees; however, hopefully the courts will recognize these minor technical violations do not alone cause ADA plaintiffs to experience difficulty, discomfort or embarrassment even for large businesses who provide public accommodation.
It is important for all businesses to do their best to ensure their buildings are compliant with disability access laws. We have defended dozens of businesses sued by litigious plaintiffs for ADA violations. Frankly, it is surprising how many businesses seem totally ignorant or unwilling to upgrade their parking lots to be ADA compliant — which is generally easy and inexpensive.
If you would like the ADA parking lot standards, let me know. ADA compliance is good business and the right thing to do.
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: development, construction, business, HOAs, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at firstname.lastname@example.org or http://www.portersimon.com.
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