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July 2012

California's Legislation to Curb Abusive ADA Lawsuits

The State legislature in Sacramento recently unanimously passed a bill that begins to address predatory lawsuits filed in California under the federal Americans With Disabilities Act. Co-sponsored by Sen. Darrell Steinberg, D-Sacramento, and Sen. Bob Dutton, R-Rancho Cucamonga (San Bernardino County), SB1186 would do three things:

  1. Ban so-called drive-by plaintiffs and their attorneys from sending "settlement demand" letters with dollar amounts to small businesses under threat of a lawsuit alleging a violation of the ADA.

  2. Require that a written notice of a "construction-related accessibility violation" be sent to a small-business owner or building landlord at least 30 days before a suit can be filed.

  3. Have commercial landlords inform small-business tenants whether their buildings are state-certified as ADA-compliant.

This is only the beginning as Steinberg acknowledged, the proposed measure is best considered "a work in progress."

Not A Cure-All Bill – Right to Cure Debate

Concerns exist that the proposed Bill is incomplete.  The bill in its current version does not address claims which have been made in these cases, or create accountability for those who have been subject to them.

There is  further concern that it does little to address the growing problem of claimants seeking multiples of the $4,000 minimum financial damages currently provided by California law. 

One of the most contentious issues reportedly involves a proposed "right-to-cure" period - a set time to allow a small-business owner to fix a violation before facing a lawsuit. In the original bill introduced, which didn't make it out of committee, the term was set at 120 days. There is no right-to-cure language in the revised bill, but Disability Rights California advocacy director Margaret Johnson called fior a 30-day notice requirement because  the purported violations  are "a substantial infringement on the civil rights of people with disabilities."

Referring to the 30-day provision after the bill was passed, proponents for the Bill countered, that If a problem is a technical violation but doesn't actually impede access, businesses should have the chance to fix it without the threat of a lawsuit.

This controversial issue among others, will be taken up when the bill’s backers convene meetings with stakeholders, including small-business owners and disability rights advocates, over the next few weeks.  Steinberg emphasized that she  wants to explore whether there's a difference between a violation of the civil rights law and a violation of the building code that does not impede access.

Rather than including a right-to-cure provision, which disability rights activists strongly object to, Steinberg said he'd rather frame a time dispensation for small-business owners to address a violation as "a duty to fix."

Time Running Out

The Assembly has yet to take up the proposed bill, and the Legislature, along with the outside stakeholders, have less than 90 days to reach a meeting of the minds before the session ends for the year.  This effort to address this ADA issue was likely prompted in part by Sen. Dianne Feinstein, D-Calif., who apparently wrote to Steinberg in March condemning the "shakedown" tactics and "abusive lawsuits" connected with ADA compliance, and threatening to introduce federal legislation if the state doesn't act to curb the practices.