The federal Americans with Disabilities Act was passed into law with the laudable goal of making businesses more accessible to people with disabilities. Unfortunately, the law was flawed from the beginning. The law left it up to the courts to determine what architectural barriers to the handicapped must or must not be removed. The law provided for injunctive relief and an award of attorney's fees to the prevailing party, but this federal law has been interpreted to usually only allow an award to the prevailing defendant if the plaintiff's conduct is frivolous, unreasonable, or groundless.
California law has added to the remedies available to ADA plaintiffs. Under the Unruh Act and Disabled Persons Act, ADA plaintiffs may obtain awards of up to $4,000 per incident as well as attorney's fees.
Having a building or premises permitted and approved by a local public entity is not necessarily a defense to a plaintiff's claims. Buildings built without a structure capable of required changes, and frequent changes in requirements, make compliance challenging.
Most disabled people do not abuse these laws. And all businesses should consider how to make their premises more accessible. Unfortunately, a small number of attorneys and ADA plaintiffs have made a business out of pursuing ADA claims: "According to information from the California Commission on Disability Access . . . of all complaints filed between 2012 and 2014 . . . . Forty-six percent of all complaints were filed by a total of 14 parties. Therefore, a very small number of plaintiffs have filed a disproportionately large number of the construction-related accessibility claims in the state, from 70 to 300 lawsuits each year. Moreover, these lawsuits are frequently filed against small businesses on the basis of boilerplate complaints, apparently seeking quick cash settlements rather than correction of the accessibility violation. This practice unfairly taints the reputation of other innocent disabled consumers who are merely trying to go about their daily lives . . . ." (Code Civ. Proc., sec. 425.55.)
If you operate a business open to the public in California, you will likely be visited by a professional ADA plaintiff. If a violation is found, a serial plaintiff will most likely file a lawsuit without warning, either in federal or state court. The claim may only be for corrections, which may or may not be significant, and for $4,000 per incident, but do not confuse these lawsuits for a minor issue. Some ADA attorneys take actions which appear to be designed to intentionally and significantly raise the attorney's fees to outrageous amounts.
What can you do? Different actions may be warranted depending upon whether you are evaluating this before or after you are served with a complaint. And if you are served, the appropriate action may vary depending on whether you are served with a federal or state law action.
A. BEFORE YOU ARE SERVED WITH A COMPLAINT
Before you are served, you may benefit from a report by a "certified access specialist" (CASp) if you are in a structure built after 1992. However, a CASp report only really describes construction related architectural "barriers" to disabled access. It does not identify costs or methods to rectify issues, or whether corrections are legally required. Such reports can also be a significant cost without resulting in any resolution. If an older structure with potential significant barriers is involved, it may be better to hire an architect with CASp certification to determine how and what to correct without necessarily issuing a report. If a significant legal issue is anticipated, it may be best to consult with an attorney first. The attorney can evaluate the legal issues and can also recommend or hire an appropriate architect to evaluate how and whether particular issues should be addressed.
B. AFTER SERVICE OF A COMPLAINT
If you are served with a complaint alleging an ADA construction related claim, you should meet with an attorney immediately. You may still end up settling the claim directly with plaintiff's counsel if you wish, but you should know your rights. And some of those rights begin to expire as soon as a defendant is served with a complaint, for instance: (a) Small businesses with 25 or fewer employees and less than $3,500,000 in gross yearly receipts may have a defense to plaintiff's claims if the claims are based on certain technical issues, such as faded paint on otherwise compliant disabled access parking spaces if the defects are corrected within 15 days of when the complaint is served; (b) Statutory damages may be reduced from $4,000 to $1,000 per occurrence if certain conditions are met and corrections are made within 60 day of the service of the complaint; (c) Statutory damages may be reduced to $2,000 per occurrence if all corrections are made within 30 days of service of the complaint and the defendant is a small business or meets other applicable requirements.
Evaluations will need to be made as to what, if anything, should be corrected, how corrections will be made, whether corrections are not "readily achievable" (which may be a defense to corrections), when the changes will be made, etc. Even if you are settling with a current plaintiff, businesses must keep in mind that does not provide a defense to claims by others in the future for barriers that are not removed.
Consideration should be given to what defenses might be raised to plaintiff's claims, and whether the defendant business wants to consider taking a case to trial if the plaintiff proves to be unreasonable. There is a risk that a plaintiff may obtain a substantial award of attorney's fees. However, that is not always the case. Most of the attorney' s fees provision favor the plaintiffs. But Civil Code section 55, for instance, is more neutral and has supported substantial attorney's fees awards against plaintiffs. Also, there are other grounds for an award of attorney's fees against a plaintiff.
The background of the plaintiff should be reviewed. Many of the serial plaintiffs that have filed hundreds of cases can be readily identified by an internet search. Business owners can consider whether the plaintiff is a disabled person that truly incurred a difficulty, or whether the plaintiff is a professional plaintiff likely concerned with profit.
There are various defenses to ADA claims and the California statutes based on the ADA. Law presently requires the plaintiff seeking California statutory damages to prove essentially one of the following: (1) The plaintiff personally encountered an ADA violation on a particular occasion, and that violation actually prevented or reasonably dissuaded the plaintiff from accessing a business he or she sought to patronize; or (2) A plaintiff personally encountered a violation on a particular occasion, and as a result the plaintiff actually experienced difficulty, discomfort or embarrassment. These requirements may be the basis of a defense in serial plaintiff litigation.
If you are served with a disabled access claim, act quickly. Many deadlines, technicalities and risks are involved.
Fred Hayes is of counsel to the Hartnett Law Group and has been involved in the defense of ADA claims. On March 1, 2016, Fred Hayes obtained a jury verdict for defendant business clients and against a serial plaintiff. Attorney's fees and costs were awarded against the plaintiff.