Understanding the ADA Defense: A California Perspective and Recent Developments
The Americans with Disabilities Act (ADA) of 1990 is a landmark federal law designed to protect individuals with disabilities from discrimination in public accommodations, employment, transportation, and other areas of life. Businesses and property owners must comply with ADA requirements, ensuring that facilities are accessible to all individuals, including those with disabilities.
The ADA and its Defenses
When businesses face ADA lawsuits, they often raise certain defenses to mitigate or eliminate liability. These defenses typically center around the nature of the alleged violation and the feasibility of the requested accommodation or modification.
Common ADA Defenses Include:
No Violation of the ADA: The defendant may argue that they are in compliance with the ADA standards and that the plaintiff's claims are inaccurate.
Undue Burden: A business can defend itself by claiming that making certain accommodations or modifications would cause significant difficulty or expense, given the business's size, financial resources, and operational impact. However, this is a high bar to meet.
Fundamental Alteration: A defense that the requested accommodation would fundamentally alter the nature of the goods, services, or operations provided by the business.
Readily Achievable Barrier Removal: The ADA mandates that businesses remove barriers to access only when it is "readily achievable." If not achievab
le due to financial or structural constraints, businesses may avoid liability.
ADA in California
California's Unruh Civil Rights Act works in tandem with the federal ADA. It offers even broader protections for individuals with disabilities, and a violation of the ADA is automatically considered a violation of the Unruh Act. While the ADA is largely aimed at achieving compliance and accessibility, the Unruh Act allows plaintiffs to recover damages, including statutory damages of $4,000 per violation.
The California Disabled Persons Act (CDPA) further bolsters these protections by allowing plaintiffs to file lawsuits based on physical access barriers, regardless of intent or discrimination.
Recent Developments in California ADA Law
Over the past decade, California has become a hotspot for ADA litigation. Plaintiff attorneys and law firms specializing in ADA cases have been known to file hundreds, or even thousands, of lawsuits alleging technical non-compliance with ADA guidelines. This has led to the term “ADA serial litigants” or “high-frequency litigants,” a reference to those who file large numbers of ADA lawsuits, often in pursuit of quick settlements.
In response to the perceived abuse of the ADA and California's Unruh Act by certain plaintiff firms, there have been significant legislative and judicial developments aimed at curbing this trend.
Legislative Changes:
California Senate Bill 1186 (SB 1186): Enacted in 2012, SB 1186 was designed to reduce frivolous ADA lawsuits and protect small businesses from serial litigation. It requires that attorneys filing ADA-related claims provide businesses with notice of alleged violations and a 30-day period to correct them before proceeding with litigation. It also reduced the statutory damages for certain small businesses if they took corrective action within 60 days of being notified of the violation.
AB 1521: Enacted in 2015, AB 1521 requires high-frequency litigants to disclose their status as such and provide additional details about the specific barriers they encountered, reducing the potential for vague or fraudulent claims.
Judicial Actions and Criminal Prosecutions:
In recent years, several prominent plaintiff firms specializing in ADA litigation have faced legal consequences for unethical conduct, including fraudulent lawsuits and abuse of the legal system. These cases reflect the state's increasing focus on balancing the rights of individuals with disabilities and protecting businesses from predatory legal practices.
Criminal Prosecution of ADA Plaintiff Firms: In a groundbreaking development, some plaintiff firms in California have faced criminal investigations for filing fraudulent or frivolous ADA lawsuits. These firms have been accused of conspiring to extort businesses by exploiting ADA violations as a revenue-generating mechanism.
For example, the case against Scott Johnson, a notorious ADA serial litigant, drew widespread attention. Johnson, who uses a wheelchair, filed thousands of ADA lawsuits against small businesses across California. However, investigations revealed potential fraud in many of his filings, leading to criminal charges. In 2021, Johnson was indicted by the U.S. Department of Justice for filing false tax returns related to the income he earned through ADA settlements.
This criminal prosecution sends a clear message: while the ADA is a critical tool for ensuring access and equity, misuse of the law for personal financial gain will not be tolerated.
Crackdowns on High-Frequency Litigants: Other high-frequency litigants have similarly faced legal consequences. Some law firms have been disbarred or disciplined for their role in enabling frivolous ADA lawsuits. Courts have also begun to scrutinize the motives behind certain lawsuits, dismissing cases where it is evident that plaintiffs were engaged in "drive-by" litigation—filing claims without ever visiting the premises in question.
Impact on Businesses and Compliance Strategies
The recent developments in ADA law highlight the importance of businesses proactively ensuring compliance with both federal and California accessibility laws. Businesses are encouraged to conduct regular audits to identify potential access barriers and address them swiftly to avoid litigation.
Moreover, while the heightened scrutiny of serial litigants provides some relief to businesses, it does not diminish the importance of ADA compliance. Failing to provide accessible accommodations can lead to legitimate claims, significant legal expenses, and reputational damage.
California Senate Bill 1186 (SB 1186): Overview and Benefits for Defendants
SB 1186 was enacted in 2012 to address the growing concern over abusive ADA litigation in California. Specifically, the bill was designed to discourage frivolous lawsuits, provide small businesses with protections, and encourage compliance with accessibility requirements. The law was a response to the increasing number of “drive-by” or “high-frequency” litigants who were filing mass ADA lawsuits primarily for monetary gain rather than to improve accessibility.
Who Does SB 1186 Apply To?
SB 1186 applies to a wide range of businesses, but its most significant provisions are aimed at:
Small Businesses: The law provides certain protections and benefits to small businesses, particularly those with limited financial resources.
Commercial Property Owners: Owners of commercial properties that are open to the public are covered under SB 1186. These properties must ensure their premises comply with accessibility standards under both the federal ADA and California's accessibility laws.
High-Frequency Litigants: SB 1186 targets high-frequency litigants (HFLs) who file numerous ADA lawsuits within a short time period. It introduces certain requirements for these litigants, making it harder for them to exploit businesses for quick settlements.
Key Provisions and How Defendants Can Benefit
Reduced Statutory Damages:
SB 1186 allows for reduced statutory damages in certain situations. If a small business corrects alleged violations within 30 to 60 days after receiving notice of the violation, the statutory damages can be reduced to $1,000 or $2,000 (from the typical $4,000 per violation under the Unruh Act).
This reduction applies to businesses with 25 or fewer employees and annual revenues of less than $3.5 million. It encourages small businesses to fix accessibility issues without the fear of crippling financial penalties.
Mandatory Written Notice Before Lawsuit:
SB 1186 requires attorneys filing ADA lawsuits to provide a written notice to the business owner or property owner, outlining the alleged violations. The business then has 30 days to fix the violation before a lawsuit can proceed. This notice requirement gives defendants time to resolve accessibility issues without immediately facing litigation.
Attorney Demand Letters:
The bill prohibits attorneys from demanding money in a demand letter without filing a lawsuit. This provision helps protect businesses from being extorted by serial litigants looking for quick settlements.
High-Frequency Litigant Requirements:
SB 1186 imposes additional requirements on high-frequency litigants, including the obligation to disclose their high-frequency status when filing a complaint. This additional layer of transparency is intended to reduce the number of abusive ADA lawsuits filed by such plaintiffs.
Certified Access Specialist Program (CASp) and Future Protections
A key element of SB 1186 is the role of the Certified Access Specialist Program (CASp), which was established to help businesses proactively comply with ADA and California's accessibility requirements. A CASp inspection offers significant benefits for businesses, including legal protections against future ADA claims.
What is CASp?
CASp specialists are certified by the state of California to assess whether a building or facility meets accessibility standards under the ADA and California law. After a CASp inspection, businesses receive a detailed report outlining any accessibility issues and recommendations for corrective action.
Benefits of CASp Certification:
Legal Protections:
Businesses that obtain a CASp inspection and correct any identified barriers are eligible for substantial legal protections. Under SB 1186, a business with CASp certification can request an early evaluation conference if they are sued, allowing them to address claims more quickly and potentially resolve the matter without extensive litigation.
If the property is inspected by a CASp before an ADA lawsuit is filed, the business may qualify for reduced statutory damages if any violations are found. If the violations are corrected within a 60-day period, the statutory damages can be further reduced to $1,000.
Safe Harbor from "Drive-By" Lawsuits:
Businesses with CASp certification and those that have corrected accessibility violations following a CASp inspection can use this certification as a defense against "drive-by" or frivolous ADA lawsuits. While certification doesn’t guarantee immunity, it demonstrates the business’s proactive approach to accessibility and compliance, which can be a strong deterrent for plaintiffs seeking to exploit technical violations.
CASp Signage:
After passing a CASp inspection, businesses are authorized to post a CASp Certificate of Inspection and the CASp sign on their property. This visible indication of compliance can further deter potential litigants from targeting the business, as it signals that the property has been reviewed and is compliant or in the process of achieving compliance.
CASp Certification Process:
Hire a CASp Inspector: The business hires a certified CASp professional to assess the property. The CASp will inspect the physical environment, focusing on areas such as entrances, restrooms, parking lots, and paths of travel.
Receive a Detailed Report: After the inspection, the business receives a CASp report, which identifies any areas of non-compliance and provides recommendations for corrective action.
Fix Accessibility Issues: Once the business implements the necessary changes to remove barriers and achieve compliance, they can apply for CASp certification, which grants legal protections as outlined above.
Display CASp Certification: Businesses that have completed a CASp inspection and implemented the recommended changes can display a CASp certificate and sign, showing that they are taking steps to ensure accessibility.
Conclusion: How Defendants Benefit from SB 1186 and CASp Certification
SB 1186 provides essential protections for businesses, particularly small businesses and property owners, by reducing the risks of ADA lawsuits and encouraging proactive compliance. By providing time to correct violations and limiting the damages for certain small businesses, the bill gives defendants a better chance to address accessibility issues before facing full legal action.
Furthermore, CASp certification offers significant long-term benefits. Not only does it protect businesses from high-frequency litigants and drive-by lawsuits, but it also helps avoid future claims by ensuring properties meet accessibility standards. Taking advantage of the protections offered under SB 1186 and obtaining CASp certification can be a strategic and cost-effective way for businesses to navigate California’s complex ADA litigation landscape while promoting accessibility for all.
Legal Representation in ADA Litigation
In the face of constant ADA litigation, businesses often turn to experienced litigators to protect their interests. Attorneys Sally Chan and Karen Tso are highly regarded for their expertise in representing both plaintiffs and defendants in ADA cases across California. They have a deep understanding of the intricacies of ADA and Unruh Act litigation and specialize in defending commercial property owners and businesses that regularly face ADA complaints.
Chan and Tso provide strategic guidance on how businesses can proactively comply with accessibility laws while navigating the complex legal landscape in California. Whether representing plaintiffs seeking to ensure access for individuals with disabilities or defending property owners from serial litigants, their experience is invaluable in an area of law that is constantly evolving.
Conclusion
The ADA and its state counterparts in California are essential for ensuring accessibility and preventing discrimination against individuals with disabilities. However, the misuse of these laws by certain plaintiff firms has led to significant legal reforms and criminal prosecutions aimed at curbing abusive practices. As the law continues to evolve, businesses must stay vigilant, balancing the need for accessibility with protections against legal exploitation.
Attorneys like Sally Chan and Karen Tso play a critical role in advising businesses and property owners on how to effectively manage ADA compliance while addressing the challenges posed by high-frequency litigants. By understanding the ADA defense mechanisms and recent developments, California businesses can better protect themselves from litigation while promoting inclusivity for all patrons.
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