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NEW LAW AIMS TO ENCOURAGE COMPLIANCE WITH DISABLED ACCESS RULES
By Jennifer Brown Shaw and Carolyn G. Burnette

Last year we wrote about laws related to the access rights of persons with disabilities to public establishments. We discussed data suggesting that while public access laws increase the quality of life for persons with disabilities, these laws have also led to vexatious litigation against property owners who are not given the opportunity to remedy compliance issues before incurring substantial penalties. In an effort to encourage a proactive approach to dealing with access issues, the Governor recently signed Assembly Bill 1608 (“SB 1608”). While SB 1608 does not provide for the “safe harbor” or “cure period” property many business advocates have sought, the new law will likely reduce owners’ liability for access issues through preventive measures.

Background – State and Federal Disabled Access Laws

Title III of the Americans with Disabilities Act (“ADA”) is a federal law requiring that privately owned businesses serving the public be physically accessible to persons with disabilities. Similarly, California has our own California Disabled Persons Act (“CDPA”). Like Title III, the CDPA requires that “full and equal access” be given to disabled individuals in accordance with the standards of Title III of the ADA. While these state and federal laws have been applauded by many for improving the quality of life for individuals with disabilities, they have also been widely criticized as a basis for litigation abuse against business owners.

The laudable intent of Title III/CDPA was to overcome the lack of accommodations in public facilities to persons with disabilities. The statutes generally achieve this by allowing persons with disabilities to sue businesses that operate facilities with physical access barriers. These barriers come in many different forms, including architecture, transportation and communication. The “public accommodations” at issue under Title III/CDPA cover virtually every category of businesses, including retail establishments, schools, hotels, medical and recreational facilities, museums and other “places of public gathering.”

Despite the well-meaning objectives of Title III and the CDPA, small and large businesses alike have complained over the years of “professional plaintiffs” targeting them for lawsuits. The suits at issue have been based on hyper-technical alleged violations of Title III/CDPA that have resulted in serial claims by the same plaintiff-attorney teams, often at substantial costs to uninformed business owners.

The New Law – How It Changes the Landscape

Senate Bill 1608 is focused on promoting compliance with Title III/CDPA through education and the formation of a disability access commission. The hope is that such measures will eventually reduce litigation in this area. The sponsors of the bill sought to maintain protection for the rights of individuals with disabilities, while at the same time educating businesses about their own rights and obligations. Some of SB 1608’s provisions go into effect on January 1, 2009, and others on July 1, 2009.

Senate Bill 1608 amends certain sections of the California Business and Professions Code, the Civil Code and the Health and Safety Code. Here is a summary some of the main provisions:

Building officials and architects must meet continuing education requirements on the specific subject of disability access. This provision will ensure that professionals directly involved with the building and planning process have appropriate knowledge of access laws.
All inspections related to permitting, plan checks or new construction in privately owned buildings must be conducted by a building inspector who is a Certified Access Specialist (“CASp”). This provision is intended to minimize the inadvertent approval of projects that do not comply with the various access requirements.
The California Commission on Disability Access (“CCDA”) will be created to develop “recommendations that will enable persons with disabilities to exercise their right to full and equal access to public facilities, and that will facilitate business compliance with the laws and regulations to avoid unnecessary litigation.” The CCDA will be responsible for monitoring disability access compliance, making recommendations to the Legislature on changes needed to promote access compliance, and developing and disseminating information on access requirements.
Business owners will be able to work with a CASp on projects to assess construction-related access barriers and obtain recommendations for compliance. Those owners who hire and consult with CASps and follow the specialist’s recommendations, may be deemed “qualified defendants” if they are later for sued access violations. As a “qualified defendant,” a business may request that a court order a 90-day stay and an early settlement conference to provide time for the parties to resolve the claims. This will occur at the onset of the litigation so the parties can minimize attorneys’ fees, damages and expenses.
Every CASp who conducts an inspection of “a place of public accommodation” must provide the building owner or tenant notice of certain matters, including the following: (1) an advisory that the business maintain copies of reports and documentation provided to them by the CASp; (2) notice that the business may be entitled to request a 90-day court-ordered stay and settlement conference if sued about a matter related to the site inspection conducted by the CASp; (3) notice that the business will be required to provide the court a copy of the CASp’s inspection report when/if requesting a stay and settlement conference; and (4) the business is entitled to request that the CASp issue a “disability access inspection certificate” for posting on the property. The language that must be contained in the CASp’s notice to the building owner or tenant is specified in the statute.
Attorneys who serve civil complaints on businesses, or who make any demands for money related to disability access claims, must provide a written notice of the business’ legal obligations and rights. The requisite notice must contain the language specified in the statute, which generally includes the following: (1) an advisory that the business obtain counsel; (2) an advisory that money is not owed to the plaintiff, and need not be paid, unless the business is found liable by a court of law; (3) instructions on how to consult with the CCDA for related information; (4) the business may be entitled to request a 90-day court-ordered stay and settlement conference; and (5) the attorney serving the notice is not permitted to speak with the business owner if the owner is represented by counsel.

The New Law – What It Does Not Do

The debate over disabled access laws has often focused on the need for legislative reform to deter frivolous suits. Many have advocated for so-called “safe harbor” or “right-to-cure” provisions.

Although there are several different ideas on how such legislation could be written, advocates generally propose variations on the following basic concept: potential plaintiffs would be required to give notice of access violations to businesses prior to filing a discrimination suit. After receiving a notice, business owners would be given a period of time to rectify access violations identified in the notice. If the business owner then “cures” the violations within the “safe harbor” or “cure” period, the potential plaintiff would be barred from bringing suit.

This concept has some legs. Congress has held hearings and proposed legislation modeled after this approach. For example, as we previously reported, Representative Ric Keller (R-Fla) introduced HR 3479 on September 5, 2007, a bill requiring that businesses be given notice and an opportunity to correct Title III violations as a precondition to commencing civil litigation. Since our last report, on October 12, 2007, the bill was referred to the Subcommittee on the Constitution, Civil Rights and Civil Liberties. Where will this go? Without a crystal ball, we cannot say for sure. However, similar measures have died in previous sessions of Congress.

Unlike Congress’ proposed legislation, SB 1608 does not create any safe harbors, right-to-cure periods, notice requirements or administrative exhaustion requirements. Nor does the law place any pre-conditions on existing access laws. Instead, the change effected by SB 1608 will come from prevention. Architects, inspectors and others involved in the building process will have greater training and heightened awareness of physical access requirements. These professionals will be available to business owners as sources of expertise who can help them avoid access violations. These professionals will also be required to provide notice to building owners and tenants of their rights, obligations and sources of information regarding access issues. In combination, these changes should decrease litigation. Moreover, business owners who are faced with litigation will come before courts that are required to promote early resolution of access issues. Early resolution typically translates into lower costs and attorneys’ fees.

Preventing Disability Access Claims

Because SB 1608 does not provide for a safe harbor or right-to-cure period, unsuspecting business owners remain vulnerable to disabled access suits. How can a business avoid the financial devastation lawsuits can bring?

Perhaps the most important step a business can take is to assess whether it is compliant with public access laws before being sued. The CCDA will be specifically charged with making educational resources and materials available to the public regarding the various access requirements. Businesses should take advantage of these resources and use them as a starting point in facility assessments.

In addition to the CCDA, SB 1608 provides that CASps will be available for hire by private businesses for consultation. While it undoubtedly will take some time for the state to certify a sufficient number of professionals as CASps, eventually this option will provide yet another source for businesses to obtain reliable assessments of their access compliance. In the meantime, businesses can discuss access requirements with contractors and architects who specialize in disabled access issues.

Another option available to businesses is to hire an compliance consultant or an attorney familiar with the ADA/CDPA to audit facilities available to the public. For very small businesses without sufficient resources to hire consultants, the federal Department of Justice has issued a free publication, “ADA Guide for Small Businesses” which addresses many “FAQs” on topics of interest, such as proper signage, aisle–width, and correct slope of entrance ramps. Business owners must be sure document their access improvement plans for achieving compliance. If they are sued or investigated, such plans stand as critical evidence in their defense.

Finally, businesses that are sued for alleged Title III/CDPA violations should immediately retain an attorney experienced in public access claims. Although Title III/CDPA claims are fairly straightforward in that a facility either is compliant with technical requirements (such as height or width measurements) or not, hiring counsel who is familiar with the applicable requirements, negotiation strategies and tactics of “serial” plaintiffs can minimize the owner’s legal costs and exposure.