Excess Disabled Access (ADA) Litigation

California businesses have long struggled with "drive-by" Americans with Disabilities Act (ADA) lawsuits brought by "professional plaintiffs" represented by unscrupulous attorneys. Both the Federal and State Legislatures have struggled with finding a balance between providing access to the disabled, as well as protecting business from burdensome lawsuits.

In January 2009, ADA trial attorneys, business groups and advocates for the disabled came up with a compromise, creating the state's Certified Access Specialist (CASp) program. This created certain procedures for businesses to be deemed "compliant." Unfortunately, there are still ADA plaintiff attorneys that send out demand letters in efforts to obtain quick settlements with businesses based on the threat of protracted litigation. Some go so far as to make threats of $4,000 per violation claims, even before filing a lawsuit.

The goal of ADA litigation has to be to gain compliance rather than make "easy money" for certain professional plaintiffs and their attorneys. The State Legislature is now attempting to respond to complaints from businesses.

In a bipartisan effort, Democratic State Senate President Pro-Tem Darrell Steinberg of Sacramento and former State Senate Republican leader Bob Dutton of Rancho Cucamonga have authored Senate Bill (SB) 1186. This bill would ban demand for money letters and would require ADA plaintiff attorneys to give notice of any construction related access "barrier" at least thirty days before the filing of a lawsuit.

This "notice" would allow businesses a chance to fix the alleged barriers before a professional ADA plaintiff can increase his or her damages and attorney fees. Additionally, SB 1186 would protect "mom and pop" shops by requiring landlords to disclose in their leases whether their commercial property is certified in compliance with access regulations. Such small businesses would then know the status of compliance at the property before they enter into a lease agreement.

Lastly, the proposed legislation would resolve disparities between Federal and State access codes. These differences often lead to scenarios where a business complies with State regulations, only to be sued for non-compliance with Federal regulations. This provision will allow local building department officials to make certain that at least newly constructed buildings comply with current Federal regulations in addition to State requirements. Businesses will be able avoid future ADA lawsuits in this scenario.

California has to act now to protect its businesses from out of control ADA lawsuits. SB 1186 offers a reasonable approach to both protect disabled rights, as well as commerce.