California business owners gained new protection against expensive, predatory lawsuits involving disability access laws last week as Gov. Jerry Brown signed into law Senate Bill 1186. It became effective September 19, 2012. The law is intended to cut down on shakedown demands and litigation, while at the same time increase disability access.
Property and business owners should familiarize themselves with the new requirements regarding demand letters involving disability access law violations. The new law:
The new law also provides some monetary relief for business that have unintentional violations that they are willing to correct. The law reduces from $4,000 to $2,000 the minimum statutory damages for each unintentional violation if the defendant is a small business (defined as having 25 or fewer employees and no more than $3.5 million in gross annual receipts) and has corrected the alleged violations within 30 days of being served with the complaint.
Additionally, the law reduces from $4,000 to $1,000 the minimum statutory damages for each unintentional violation if (1) the defendant corrects all violations within 60 days of being served with the complaint, and (2) and other circumstances apply including, among others i) the property was previously inspected by a Certified Access Specialist (CASp) prior to the date of the Plaintiff’s alleged encounter with the barrier to access, or ii) the alleged violation pertains to new construction at the site that was approved pursuant to a local building permit and inspection process between January 1, 2008, and January 1, 2016.
Additional categories of defendants will now be able to request a stay of litigation and an early evaluation conference if:
In assessing liability in any action alleging multiple claims for the same violation on different occasions, courts are now required to consider the reasonableness of the plaintiff’s conduct in light of plaintiff’s obligation, if any, to mitigate damages. This is intended to deter plaintiffs from repeatedly attempting to access the same property and encountering the same barriers for the sole purpose of enhancing their claim for statutory damages and fees.
The new law also requires commercial property owners to state on all lease forms or rental agreements executed on or after July 1, 2013, whether the property being leased had undergone an inspection by a CASp.
Overall, the new law provides significant benefits to small business owners by promoting early identification and correction of violations and reducing the amount of statutory damages available to serial plaintiffs, and creating a mechanism for oversight of predatory practices by ADA practitioners. The law also provides incentives for property owners to promptly remedy violations upon demand and to obtain a CASp inspection.
© 2012 Allen Matkins Leck Gamble Mallory & Natsis LLP. All rights reserved. This alert is intended for general information purposes only and should not be construed as legal advice or legal opinions on any specific facts or circumstances. This email was sent by: Allen Matkins Leck Gamble Mallory & Natsis LLP, 515 S. Figueroa Street, 9th Floor, Los Angeles, California 90071.
Michael J. Holmes
Shopping Center, Retail & Mixed-Use
Hospitality & Leisure
Real Estate Disputes
(619) 233-1158 (fax)
Labor & Employment,