This article is the second installment of the disabled access “myth” series. The first installment discussed the myth that alleged violators have been violating the law for for nearly 25 years. The article pointed out the fact that businesses in buildings built before 1992 (the year of implementation of the ADA), are exempted from the ADA construction standards with the exception of a duty to remove barriers when it is readily achievable to do so, which has acted a “reverse loophole” for opportunistic lawsuits and no clear defense. This reverse loophole facilitates excessive settlements by “threat of expense” of litigation rather the than threat of victory on the merits. The second myth is one that plaintiff’s attorneys use to maximize the litigation expense, as well as shock value, of their lawsuits, in turn maximizing their monetary settlement leverage. Continue reading
Small retail buildings constructed before ADA adopted.
The Americans with Disabilities Act (ADA) and has done much to reshape our country to make it more accessible to people with all varieties of disabilities. There is no doubt that it was one of the most important and beneficial laws enacted in the twentieth century.
However in California, there is a seamy side to the ADA and its state access law correlaries.
Small business struggling with accessibility issues
Improving access for the disabled in our built environment is an important societal objective. In the U.S., an increasing portion of our population are seniors with mobility issues, people with illnesses effecting their mobility, and war veterans with ambulatory wounds. In 1990, the U.S. Congress passed the landmark legislation known as the Americans with Disabilities Act (“ADA”). Continue reading
Disabled access lawsuits have long had a predatory aspect to them. A large percentage of the suits target properties that pre-date the enactment of access laws. These properties were largely exempted from the Americans with Disabilities Act (ADA) and California disabled access regulations. However,
While the Americans with Disabilities Act (ADA) and California’s similar disability discrimination laws have broad applicability, the vast majority of lawsuits allege “access barriers” in “public accommodations.” The reason these access lawsuits far outnumber other ADA lawsuits (e.g., employment or housing discrimination) is that they allow lawsuits by people having only minimal contact with the target of the lawsuit.
On September 19, 2012, California Governor Brown signed Senate Bill 1186 by Darrell Steinberg (D-Sacramento) and state Sen. Bob Dutton (R-Rancho Cucamonga), which was designed to deter abusive tactics in disabled access discrimination lawsuits. The bill has been touted as having the following highlights:
- Caps statutory damages at $1,000, instead of $4,000, for any defendant who corrects all violations within 60 days of service of the lawsuit for sites which were approved and constructed between 1/1/2008 and 1/1/2016 or which have been inspected by a Certified Access Specialist (CASp).
- For sites that don’t qualify for the damage reduction to $1,000 per offense, caps statutory damages at $2,000 per offense when the violations are corrected within 30 days of service of the lawsuit, for business defendants with fewer than 25 employees and have gross receipts less than specified (on avg) over a 3 year period.
- Allows a defendant to request an early evaulation period if a violation is corrected within a specified time period.
- Bans pre-litigation “demand for money” letters and creates rules for demand letters and complaints.
- For any property leased after January 1, 2013, requires a property owner and or lessor to notify the tenant if the property has undergone a CASp inspection. CASp inspections notify owners and tenants if buildings are in violation of ADA regulations.
- Requires the California Commission on Disability Access to promote and facilitate accessibility compliance.
- Requires cities and counties to inform business licensees of their responsibilities to comply with accessibility laws.
From this author’s perspective, the provision that prohibits prelitigation demands for money is misguided. Such demands may be viewed by the general public as “shake down letters.” However, the new law seems to assume that ADA plaintiff attorneys are hesitant to file lawsuits and that, in turn, this provision would deter some claims. In fact, the reason some plaintiff attorneys send letters prior to lawsuits may be to protect their right to an attorney fee award under Civil Code 55.55 (enacted in 2008 under prior reform amendment SB 1608) knowing that many defendants won’t respond to the letters. Civil Code 55.55 promotes early settlement efforts and deters attorney fee claim churning through a reduction of attorney fee awards for plaintiff’s who have not made early settlement efforts. Prior case law held that Plaintiffs needed not make pre-litigation settlement efforts. While no case had yet held that Civil Code 55.55 overruled such prior case law, at least the argument was there to be made. SB 1186 would seem to reaffirm prior case law and may provide plaintiff attorneys an excuse not to make such efforts prior to filing a lawsuit. It will make these claims more expensive for defendants to defend and settle. Why would defendants want such a provision after trying for years to get a pre-litigation notice requirement included in the law?
Additionally, many small businesses may not want to open up their finances to a public argument as to whether they qualify for the lower statutory damage amount. It provides no relief for larger business defendants that are sued for minor or technical non-compliance with architectural standards, many of which involve buildings constructed before such standards were enacted.
On January 14, 2010, the California Supreme Court issued its opinion in Chavez v. City of LA. While this was a Fair Employment and Housing Act case (FEHA), it could help to deter over-reaching by plaintiffs in California disabled access litigation. The Supreme Court unanimously held that under Code of Civil Procedure 1033, the court may deny attorney fees to an otherwise prevailing plaintiff in a civil rights case if the amount of damages recovered is less than the jurisdictional threshold (i.e. $25,000 for Unlimited Civil). Attorney fees and costs are excluded for this calculation (Steele v. Jensen, cited in Chavez). In other words, Unruh and Disabled Persons Act cases typically should be filed in Limited Civil. While some have argued that access cases are properly filed in Unlimited Civil because of the injunctive relief claims, the following would suggest otherwise:
1) Civil Code 52.2 give lower jurisdictional classifications jurisdiction of cases under Civ. Code 52 and 54.3, each of which expressly provide for injunctive relief;
2) Such an argument is similar to the plaintiff’s rejected argument in Chavez that the nature of FEHA cases was not suitable for Limited Civil courts; and
3) Under Steele v. Jensen, cited in Chavez, it is the recovery obtained, not the recovery pled, that determines the proper jurisdictional classification. Thus, if all code deviations are corrected prior to judgment, the injunctive relief claim will be moot, and cannot be a basis for filing in Unlimited Civil. This is especially true where, as in most access cases, there was no pre-litigation notice given. Moreover, a catalyst theory attorney fee award will be unavailable because under the Cal. Supreme opinion in Graham v. Daimler-Chrysler, pre-litigation notice must be given to qualify for catalyst fees.