October 2012
California Governor Jerry Brown has signed into law Senate Bill 1186 geared
to prevent the ever growing frivolous lawsuits of American with Disabilities Act
(ADA) violations.
Nearly 40 percent of ADA lawsuits are filed in the state of California.
There is a serious problem in the state where attorneys are filling shakedown
lawsuits negotiating monetary settlement with no intention of improving access
for persons with disabilities.
A San Diego based attorney, who filed ~500 such lawsuits over a three year
period was recently disbarred as many of the suits included a plaintiff whom was
not even aware the suits had been filed.
A key provision of the legislation bans "demand for money" letters. Letters
can still be sent to a business alerting them of a potential violation or
infraction, but that letter can't include a "demand for money". Attorneys will
also be required to send any letter regarding ADA issues to the California State
Bar.
The law also prevents stacking of multiple claims, a common practice to
increase monetary damages, and requires the plaintiff to explain the need for
multiple visits to the same business with a known uncorrected barrier to
access.
As the bill includes an urgency clause and was passed by the Senate on a 34-3
vote and 77-0 in the Assembly the law will go into effect immediately.
ADA ACCESS CONSULTING BLOG
Wednesday, December 5, 2012
Friday, November 9, 2012
ADA REQUIREMENTS AND YOUR SMALL BUSINESS
Making your business accessible is not a one-time endeavor, it is an ongoing responsibility. Various state and federal disability access laws apply to small business in California. Non-compliance can result in significant expense from defending and settling "drive-by" lawsuits.
IMPORTANT REMINDERS FOR SMALL BUSINESSES
Even if you are not engaged in construction or renovation, you are subject to federal and state disability rights laws. Compliance with building code requirements does not relieve you of the obligation to comply with civil rights laws, and vice versa.
The Department of Building Inspection (DBI) only reviews the California disability access code requirements triggered by the renovation work. When DBI signs off on a building permit or certificate of occupancy, DBI does not conduct a general review of the premises to identify disability access code violations.
The primary responsibility for compliance with building codes lies with your architect and contractor. Even if DBI approves the building permit or certificate of occupancy, it may miss a relevant disability access code violation. If so, you, not the City, will be responsible for the access violation.
How to Reduce
Your Risk of Being Sued
1. Hire a Certified Access
Specialist (CASp). A CASp will survey your premises to identify barriers to
access. If you are sued, the CASp inspection report makes you eligible to
request a 90-day stay of the lawsuit and an Early Evaluation Conference.
Without a report, you cannot benefit from this valuable opportunity.
2. Review the report provided by your CASp. The report
either certifies that you have complied with state and federal disability
access laws, or explains the steps necessary to achieve full compliance. The
report will also provide a recommended timeline for removal of all
"readily achievable" barriers to access.
3. Remove barriers over time, according
to the CASp report's timeline, and as you can afford to do so.
4. Use tax credits and deductions to help reduce (or eliminate) the costs of barrier removal.
If you do receive a verbal or written complaint, follow up immediately. Delay may lead to litigation. For this reason:- DO NOT ignore the letter or other complaint sent to you by a person with a disability. Letters may be precursors to a lawsuit or complaint filed with DBI.
- DO respond to the letter or other complaint. You may respond by simply letter the complainant know that you take his or her concerns seriously and will consult with a professional, such as a CASp inspector and/or legal counsel.
- DO consult with a CASp inspector if you have not done so already.
- DO immediately call an experienced attorney if you are sued.
How Do I Pay for Access Improvements?
Tax Benefits: Tax incentives are available to help absorb costs. You may be able to take as much as $5,000 in tax credits and $15,000 in deductions per year over several years for making accessibility improvements.
Loans: Opportunity Fund – Some “micro-lenders” have a program to offer loans from $1000 to $50,000 to assist you with the cost of a CASp inspection and report, access improvements, and legal assistance.
Thursday, November 8, 2012
Measure to Increase Disabled Access, Curb ADA Abuses Sent to Governor
September 1, 2012
(Sacramento) – Democrats and Republicans have joined together to support legislation to end unfair legal practices that prey on California businesses while also encouraging businesses to correct violations and provide full and equal access for those who are disabled.
SB 1186 (Steinberg/Dutton), now heading to the Governor’s desk for signature, bans the abusive practice by some attorneys of issuing “demand for money” letters to businesses that allegedly have construction-related barriers to access in violation of state and federal disabled access laws. The measure also significantly reduces damages against business owners who correct alleged violations within 30 to 60 days of receiving a complaint. The Senate passed the bill with strong bipartisan support, 34 - 3. As an urgency measure, it will take effect immediately upon signature of the Governor.
“Championing civil rights for the disabled is what first motivated me to get into public service. The Unruh Civil Rights Act is one of the great laws of this diverse state, and including ADA violations within the protections of the Unruh Act was the right thing to do in 1992. At the same time, it’s just plain wrong that some attorneys abuse the law by filing paper against businesses all over the state, making multiple claims for the same violation to pressure a quick settlement, and demanding money with the threat of a lawsuit over minor violations of disabled access laws,” said Steinberg. “SB 1186 is a compromise that applies a common sense approach to resolve difficult issues. In the end, this will give some relief to entrepreneurs who show good faith in trying to follow the law and are willing to correct the violation. Ultimately this measure promotes compliance and brings greater access to the disabled community.”
In addition to banning “demand for money” letters, which often result in a swift out-of court settlement without the actual correction of a violation, the bill requires more specific details in any complaint alleging barriers to disabled access. It also prevents “stacking” of multiple claims to increase monetary damages, requiring a plaintiff to explain the need for multiple visits to the same business with a known uncorrected barrier to access. In one known instance, a person asserted 30 violations at the same business within less than 30 days. Such threats for high damages often intimidate property owners who feel pressured to quickly settle the claim for lesser damages.
The legislation also makes it a priority for the California Commission on Disability Access to develop and disseminate educational materials and information to promote and facilitate compliance with the law. In addition, it provides for more certified access specialists in local building departments to ensure new construction and improvement projects don’t get approved unless they comply with disability access requirements.
Lastly, there are provisions designed to avoid confusion and unnecessary litigation with the upcoming publication and adoption of the 2013 California Building Standards Code. Once the code is published, it doesn’t become effective for 180 days. The bill provides that upon the publication date of the new 2013 code yet before its effective date, the property owner may choose to comply with the 2013 Building Code provisions regarding construction-related accessibility standards in any Unruh damages claim.
(Sacramento) – Democrats and Republicans have joined together to support legislation to end unfair legal practices that prey on California businesses while also encouraging businesses to correct violations and provide full and equal access for those who are disabled.
SB 1186 (Steinberg/Dutton), now heading to the Governor’s desk for signature, bans the abusive practice by some attorneys of issuing “demand for money” letters to businesses that allegedly have construction-related barriers to access in violation of state and federal disabled access laws. The measure also significantly reduces damages against business owners who correct alleged violations within 30 to 60 days of receiving a complaint. The Senate passed the bill with strong bipartisan support, 34 - 3. As an urgency measure, it will take effect immediately upon signature of the Governor.
“Championing civil rights for the disabled is what first motivated me to get into public service. The Unruh Civil Rights Act is one of the great laws of this diverse state, and including ADA violations within the protections of the Unruh Act was the right thing to do in 1992. At the same time, it’s just plain wrong that some attorneys abuse the law by filing paper against businesses all over the state, making multiple claims for the same violation to pressure a quick settlement, and demanding money with the threat of a lawsuit over minor violations of disabled access laws,” said Steinberg. “SB 1186 is a compromise that applies a common sense approach to resolve difficult issues. In the end, this will give some relief to entrepreneurs who show good faith in trying to follow the law and are willing to correct the violation. Ultimately this measure promotes compliance and brings greater access to the disabled community.”
In addition to banning “demand for money” letters, which often result in a swift out-of court settlement without the actual correction of a violation, the bill requires more specific details in any complaint alleging barriers to disabled access. It also prevents “stacking” of multiple claims to increase monetary damages, requiring a plaintiff to explain the need for multiple visits to the same business with a known uncorrected barrier to access. In one known instance, a person asserted 30 violations at the same business within less than 30 days. Such threats for high damages often intimidate property owners who feel pressured to quickly settle the claim for lesser damages.
The legislation also makes it a priority for the California Commission on Disability Access to develop and disseminate educational materials and information to promote and facilitate compliance with the law. In addition, it provides for more certified access specialists in local building departments to ensure new construction and improvement projects don’t get approved unless they comply with disability access requirements.
Lastly, there are provisions designed to avoid confusion and unnecessary litigation with the upcoming publication and adoption of the 2013 California Building Standards Code. Once the code is published, it doesn’t become effective for 180 days. The bill provides that upon the publication date of the new 2013 code yet before its effective date, the property owner may choose to comply with the 2013 Building Code provisions regarding construction-related accessibility standards in any Unruh damages claim.
Following is the current text of the Americans with Disabilities
Act of 1990 [ADA], including changes made by the ADA Amendments Act of 2008
(P.L. 110-325), which became effective on January 1, 2009. The ADA was
originally enacted in public law format and later rearranged and published in
the United States Code.
The United States Code is divided into titles and chapters that classify laws according to their subject matter. Titles I, II, III, and V of the original law are codified in Title 42, chapter 126, of the United States Code beginning at section 12101. Title IV of the original law is codified in Title 47, chapter 5, of the United States Code. Since this codification resulted in changes in the numbering system, the Table of Contents provides the section numbers of the ADA as originally enacted in brackets after the codified section numbers and headings.
Three versions of the Americans with Disabilities Act of 1990, as amended are provided below. The first is the text with the amendments incorporated. The second version shows the text with the amendments highlighted by strike through text for deletions and bold text for additions. The third version shows the same highlighted content with additional coding for people who use screen readers.
Current text of the Americans with Disabilities Act of 1990 incorporating the changes made by the ADA Amendments Act of 2008. (HTML) | (PDF)
Text showing the changes to the Americans with Disabilities Act of 1990 made by the ADA Amendments Act of 2008 with deleted language shown as strike through font and new language shown in bold font. (HTML)
Text showing the changes to the Americans with Disabilities Act of 1990 made by the ADA Amendments Act of 2008 with deleted language shown as strike through font and new language shown in bold font with coding for access by people who use screen readers. (HTML)
Text of the Americans with Disabilities Act of 1990, before changes made by the ADA Amendments Act of 2008 (HTML) [archive].
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