ADA COMPLIANCE AND LITIGATION UPDATE- October 2013
A. ADOPTION OF NEW 2013 BUILDING CODE CHANGES MEASUREMENT STANDARDS FOR ADA ACCESSIBILITY COMPLIANCE
Information for Property Owners Facing Claims for Alleged Violation of a Construction-related Accessibility Standard Due to Non-Compliant Measurements
The California Building Standards Commission recently adopted the new 2013 California Building Standards Code which will go into effect early next year. Significantly, among its many provisions, the new 2013 building code permits compliance with specified construction-related accessibility standards pursuant to a variable measurement range as compared to a strict measurement standard currently used in the 2010 building code. This change will eliminate many of the ADA lawsuits alleging a barrier violation based on incorrect measurements.
To avoid confusion and unnecessary litigation so that a property owner is not sued for non-compliance with the 2010 building code when the alleged property violation would be in compliance with the variable measurement range set out in the 2013 building code, Senate Bill 1186 (Steinberg and Dutton of 2012) enacted special “transitional” provisions to protect property owners from unwarranted liability claims before the new code actually goes into effect next year. This change applies to claims made on and after July 1, 2013 — the publication date of the 2013 California Building Standards Code.
That statute, Health and Safety Code Section 18944.15, provides that a property’s compliance with property measurement standards for disability access in the 2013 building code is an alternative method of compliance until the 2013 building codes take effect next year. It states in relevant part:
§ 18944.15, (a) Upon the publication date of the 2013 California Building Standards Code as adopted by the commission as part of the 2012 triennial code adoption cycle, for the purpose of any claim brought under Section 51, 54, 54.1, or 55 of the Civil Code based in whole, or in part, on an alleged violation of a construction-related accessibility standard, compliance with the building standards for disabled accessibility as provided in Chapter 11B of Part 2 of Title 24 of the 2013 California Building Standards Code shall be authorized as an alternative method of compliance.
The California Building Standards Commission will have electronic versions of the 2013 code viewable online at the following hyperlink: http://www.bsc.ca.gov/codes.aspx.
The California Commission on Disability Access also provides information and educational materials. The Commission’s website is available at www.ccda.ca.gov/.
B. NEW LITIGATION TACTICS AGAINST BUSINESSES
In the 2012 legislative session, SB 1186, co-authored by Senate Pro Tem Darrell Steinberg and Senator Bob Dutton, sought to limit abusive litigation tactics used by plaintiff’s attorneys with regard to the laws requiring that places of public accommodation are accessible for persons with a disability. One of the key provisions in SB 1186 was to prevent the stacking of claims. Prior to SB 1186, unscrupulous attorneys would have their clients repeatedly visit the same business establishment to encounter the same alleged construction-related accessibility violation in order to drive up the value of the case, as under the California Unruh Civil Rights Act, each violation triggered a minimum $4,000 statutory penalty. In one notorious example, the lawsuit claimed that the plaintiff had been denied access to the same business, on the same basis, on 30 different occasions and asked for $120,000 in damages. SB 1186 sought to cure this abuse by mandating a court to review the reasonableness of a plaintiff’s actions in repeatedly returning to the same establishment where the individual had experienced a construction-related accessibility violation in light of the plaintiff’s obligation under the law to mitigate (reduce) damages. Thus, if the plaintiff’s complaint alleges that he/she went to the same fast food restaurant 20 times and each time the plaintiff encountered the same barrier violation (such as a non-compliant countertop or parking space), SB 1186 allows the judge to question the validity and reasonableness of each of the repeated visits and whether the plaintiff had a reasonable basis for not mitigating his damages. (SB 1186 also reduced the minimum statutory penalty to either $1,000 or $2,000 for certain defendants who met specified criteria and corrected the violation within 30 to 60 days. However, for intentional violations and defendants who did not qualify for reduced damages liability, the minimum statutory penalty remains at $4,000 per violation.)
Unfortunately, those same unscrupulous attorneys are trying to manipulate the anti-stacking restrictions. Instead of suing based on the same plaintiff’s multiple visits to the same business for the same violation, now restricted by SB 1186’s anti-stacking provision, some lawyers are using different plaintiffs to sue the same business for the same violation. By filing separate lawsuits by different plaintiffs, the lawyer is not “stacking” his/her claims in the same case, and is therefore able to avoid the mandatory review by the judge as to the reasonableness of the claims alleged.
This new litigation tactic is a good reminder to businesses that although there have been legislative efforts such as SB 1186 to try to deter frivolous litigation the best way to protect a business against such litigation is to have the property inspected by a Certified Access Specialist to identify and remedy any potential construction-related accessibility issues. The California Commission on Disability Access recently released a report that identifies the top ten construction-related accessibility violations alleged in settlement demand letters and claims: http://www.ccda.ca.gov/Reports.htm. All business and property owners should review this report to not only educate and protect them from being the target of costly litigation on, but to make their businesses accessible to all patrons by removing such accessibility barriers.
TOP 10 ADA CLAIMS AGAINST BUSINESSES IN CA
Pursuant to SB 1186 – a bill we sponsored last year which helped reform ADA abuses in California – the California Commission on Disability Access (CCDA) has published a list of “TOP 10 Demand Letters & Claims.” The best way to avoid such a lawsuit is to know law, the building code, and assure your property complies. We hope you find this information helpful.
The CCDA is authorized by California Government Code Sections 8299-8299.11 to act as an information resource; to research and prepare advisory reports of findings to the Legislature on issues related to disability access, compliance inspections and continuing education; to increase coordination between stakeholders; to make recommendations to promote compliance with federal, and state laws and regulations; and to provide uniform information about programmatic and architectural disability access requirements to the stakeholders.
Our industry was supportive of the legislation that created the CCDA and we work very closely with Commissioners and staff. Click here to find out more about the CCDA.