Calif. bill targeting ADA lawsuit reform clears committee

By Jessica M. Karmasek | May 11, 2012





SACRAMENTO, Calif. (Legal Newsline) - A bill aimed at helping California businesses comply with Americans with Disabilities Act requirements, without facing the threat of frivolous lawsuits, cleared a key committee this week.

On Tuesday, Senate Bill 1186 passed the state Senate Judiciary Committee on a 4-1 vote.

SB 1186, authored by Senate Pro Tem Darrell Steinberg, D-Sacramento, and Sen. Bob Dutton, R-Rancho Cucamonga, hopes to curb predatory ADA lawsuits, in particular against small businesses in the state.

Specifically, the measure would ban "demand for money" letters. In these letters, lawyers often order businesses to pay a set amount, plus their exorbitant legal fees, in exchange for dropping the case.

SB 1186 also would require attorneys to send a notice letter, listing any alleged construction-related violations, at least 30 days before filing a lawsuit.

In addition, the measure would require landlords to disclose whether their buildings or properties are state certified and in compliance with ADA laws.

SB 1186 also hopes to resolve conflicts between state and federal standards, which some believe is adding to the number of lawsuits filed.

Both Steinberg and Dutton said Tuesday that the bill is still a "work-in-progress" and promised to negotiate with all interest groups before a final version is passed and sent to Gov. Jerry Brown.

"There is clearly a problem throughout California with unscrupulous attorneys using the ADA to file sometimes hundreds of lawsuits in an attempt to shakedown small business owners out of thousands of dollars," Dutton said. "Sen. Steinberg and I are committed to finding a solution to this problem this year."

Nearly 40 percent of ADA lawsuits in the nation are filed in California.


The Americans with Disabilities Act was enacted by Congress in 1990. It was signed into law by then-President George H. W. Bush.

The civil rights law prohibits discrimination based on disability.

While the law was meant to increase access for disabled people, it also has helped line the pockets of many trial lawyers and what some describe as "professional plaintiffs."

Often times, businesses, especially small businesses, are wrongly targeted for ADA lawsuits.

Groups, such as Citizens Against Lawsuit Abuse, complain that the suits don't give business owners a chance to make even a minor repair. Instead, they demand money from the owner to make the suit go away.

However, in January 2009, a new law went into effect to help increase access and decrease litigation.

Now, in California, businesses can hire a certified access specialist, or CAS, to ensure they are compliant with ADA law.

If a business that has been CAS-certified is sued, there will be a stay of litigation and a streamlined court procedure.

The law also requires that plaintiffs may recover damages only for a violation they personally encountered, or that deterred access on a particular occasion, not for a violation that may exist.

Still, many remain concerned about the high number of ADA lawsuits in the state.

They fear it could mean economic disaster for businesses -- even cities, counties and school boards, which are also being sued -- and, ultimately, the state's economy.


Tom Scott, executive director of California's CALA, echoed those concerns this week.

But he said SB 1186 is a step in the right direction.

"We support SB 1186 as a work in progress," Scott said Thursday. "There's a lot of negotiation that's going to have to go on relative to the bill. Even Sens. Steinberg and Dutton have said that.

"There are a lot of stakeholders involved. CALA will certainly be at the table as far as those negotiations are concerned."

Scott said if there is any ability to get movement against the abusive lawsuits, SB 1186 is "the vehicle."

"But it's not going to be easy. It's going to involve a lot of negotiation," he warned.

"Still, CALA certainly applauds Sens. Steinberg and Dutton. The fact that it's a bipartisan effort in the state Senate is great. We're certainly supportive of the effort."

Meanwhile, another group, Disability Rights California, has come out against the bill.

In a letter to Steinberg last week, DRC noted it finds some "valuable components" in the measure. However, as it stands, the group opposes the bill.

In particular, the 30-day notice required before bringing suit for lack of access infringes upon the civil rights of people with disabilities, it argues.

"To the extent that it can be shown that there are abuses in the use of access law remedies, any proposed solution must be narrowly crafted to target only those abuses, without impairing legitimate actions pursuant to laws necessary to ensure access and civil rights," Advocacy director Margaret Johnson wrote in her May 3 letter to Steinberg.

People with disabilities should not have enforcement of their civil rights limited or delayed because of the actions of a few, Johnson said.

"It treats people with disabilities as second-class citizens by targeting them for additional procedural and legal barriers to enforce their rights," she wrote.

"The bill singles out people with disabilities, alone among all groups with civil rights protections, to jump through legal hoops before being able to have their civil rights violations addressed."


SB 1186 isn't the only piece of legislation targeting ADA lawsuits this session. But, at this point, it's the only one getting any traction.

At least a handful of bills were introduced this session, both in the state Senate and Assembly.

Among them are Senate Bill 1163, sponsored by Sen. Mimi Walters, R-Laguna Niguel, and Assembly Bill 1610, by Assemblyman Donald Wagner, R-Irvine. Both bills would require attorneys to give notice of any violation, give businesses 30 days to respond and then another 120 days to fix the problem before a suit could be filed.

Walters' bill failed to pass the Senate Judiciary Committee Tuesday. A hearing on Wagner's bill has been postponed since the end of last month.

Assemblywoman Beth Gaines, R-Rocklin, introduced two measures, Assembly Bill 1878 and Assembly Bill 1879, back in February.

AB 1878 would give the state's small businesses an opportunity to correct an ADA violation before a lawsuit can be filed. Once a business has received a written notice of violation, they would be given 120 days to bring their business into compliance.

About 98 percent of California businesses are out of compliance with state and/or federal disability access laws, Gaines noted.

It is the complex and inconsistent regulations that make it difficult for willing business owners to comply with the complicated and ever-changing regulations, and give lawsuit abusers the chance to take advantage of the laws, she said.

"The unfortunate reality is that there are individuals who are capitalizing on the complex access regulations enacted by the state and federal government for personal benefit," Gaines said in February.

"Businesses can be sued for thousands of dollars for simple faults, such as a railing height being off by a centimeters or parking lot striping not being the right shade of a particular color.

"Many times, businesses want to correct the error to allow for more access to their place of business. These frivolous lawsuits are making it harder for the business to come into compliance, especially in this difficult economic environment."

AB 1878 failed to pass the Assembly Judiciary Committee this week.

AB 1879, Gaines' other bill, would require the state architect to compile a list of all federal and state disability access regulations, and identify any conflicts between the two.

"As California continually adds and changes disability access regulations, it is difficult for business to keep up," she said. "There are instances when state regulations are in conflict with federal regulations, making it even more difficult for businesses to be compliant."

AB 1879, which previously cleared the Assembly Business, Professions and Consumer Protection Committee with bipartisan support, is now waiting on a vote by the appropriations committee.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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