ADA Reform – Relief Is On The Way For California Businesses

For years, California business owners have called for legislation that would offer some legal protection for building owners trying to comply with the Americans with Disabilities Act ("ADA").  The ADA and similar state access laws were enacted to protect access to all buildings, structures, sidewalks curbs and related facilities to ensure accessibility by persons with disabilities.  Failure to comply with the ADA's laws often result in substantial fines and mandatory damages payable to the parties who filed suit.  Due to the complexity of the ADA/state access laws and their many requirements, California businesses struggle with compliance. 

Recently, however, Governor Schwarzenegger signed Senate Bill 1608 (codified in several California statutes including, but not limited to Civil Code sections 55.3 and 55.51 et. seq.), which is reform legislation designed to promote and increase compliance with disability access laws.  The Bill provides equal public access in places of business to individuals with disabilities while simultaneously reducing unwarranted litigation that does not advance the goals of the ADA.  Most of the provisions of SB 1608 become effective May 1, 2009.

The best method for business owners to avoid being sued for ADA violations is to ensure that their buildings are in compliance with governing access laws.  SB 1608 offers the following ways to help:

Businesses can and should retain a CASp - A Certified Access Specialist (CASp) is a person who has been tested and certified by the state as an expert in disability access laws.  The CASp can provide advice and opinion to business/property owners on compliance with construction-related accessibility standards.  If the CASp determines that a business meets applicable construction-related accessibility standards, he/she will issue a report indicating that the business meets these standards.

• Once certified by a CASp – Certified businesses who are sued for access violations are eligible to obtain:

◊ 90-day stay of the ADA lawsuit, during which time attorneys may not engage in motions,
discovery or other activities that incur attorneys fees; and

◊ an Early Evaluation Conference (EEC), a court-run conference during which the parties discuss whether settlement is possible, especially if the problems are easy to fix.

Business owners must have the CASp inspection report in order to obtain these benefits. 

• CASp certified businesses can obtain a window sign - The CASp must also give the business a numbered, watermarked "Disability Access Certificate" which the business may display in its window to indicate its compliance.  This window sign will send the message that the business took proactive steps to comply with disability access laws and is not an easy target for lawyers seeking to earn quick money via a lawsuit.

While SB 1608 does not provide for a "safe harbor" or "cure period" wherein the business owner may fix the violations, this Bill will assist in reducing a business owner's liability for access issues through preventive measures.  SB 1608 also offers the following ways to reduce unwarranted ADA lawsuit practices:

• Attorneys who issue demands for money due to purported access violations must also provide the business owner with an advisory statement explaining the business's legal rights, including the right to an attorney. 
• Multiple damages may not be recovered at a single facility.  An individual may only recover damages if he/she encountered a violation or was deterred from accessing the business.  A denial of full access constitutes one violation.  
• Parties will be encouraged to consider reasonable settlement offers.  A court may consider reasonable settlement offers made or rejected when ruling on attorney's fees which are allowable under statute.

If you have any questions regarding SB 1608, or want to find out how to locate a CASp, please contact one of Burnham Brown's experienced ADA attorneys. Allyson Cook is a member of Burnham Brown's Employment Law Department and specializes in employment and general litigation can be reached at 510.835.6816 or acook@burnhambrown.com.  Steve Scott specializes in complex commercial litigation, primarily in the toxic tort and transportation arenas.  He can be reached at 510.835.6822 or sscott@burnhambrown.com.