The following is a guest article by a CASp certified architect:
SB 1186 Passes Senate Judiciary Committee on May 8
By Yung Kao, CASp CBO NCARB
May 10, 2012
When the U.S. Congress passed the Americans with Disabilities Act (ADA) in 1991, some people called it a “Bill of Litigation” as it requires building and business owners to retrofit existing buildings and remove “architectural barriers” that were created prior to the law. Combined with California’s Unruh Civil Rights Act and other anti-discriminatory laws, the ADA became a much more potent mechanism for lawsuits.
About 12,000 ADA claims were filed nationwide from 1991 to 2011, and about 8,000 of them were filed in California within the past 8 years alone. These filed lawsuits represents only a fraction of the actual number of threats that have been made on businesses as most threat of lawsuit results in a settlement rather than a court action.
A big portion of those cases in California have been filed by a couple dozen lawyers. These self-proclaimed access rights crusaders are generally perceived by the business community as “drive-by” litigants. Some of them do appear to be more interested in collecting monetary settlements than improving access on the premises they sue. These cases are often filed in large batches by geographic location. The main vehicle for these threats originates in a demand letter, stating that the stakeholder pay money otherwise a lawsuit situation will erupt.
Most businesses and property managers settle, as a court battle could result in a larger fine, along with an increased payment to the opposing attorney.
In response to the outcry from the business community, California has at least six bills dealing with accessibility claims in the current legislative session. An unexpected event to accentuate this drama is an open letter in March from Senator Dianne Feinstein to California Senate President pro Tem Darrel Steinberg, urging him to use his leadership to advance legislation that would curb what she called “predatory lawsuits” and “coercive demand letters” that are “unfairly and unnecessarily threaten the viability of some small businesses in our State”. The letter specifically mentioned California’s SB 1186 introduced by Republican State Senator Dutton as an example of such legislation. Steinberg’s reply letter elaborated on SB 1608 of 2008 to illustrate the legislature’s efforts in deterring frivolous ADA claims. He further explained that the “90 day to cure” provision in SB 1186 is inconsistent with other protected categories in California’s Unruh Civil Rights Act. This inconsistency with the other protected civil rights in the Unruh Act explains why any bills with provisions to include a cure period are consistently defeated.
In April, Steinberg took over SB 1186 and introduced an extensive amendment to the bill. The 90-day period to cure was deleted from the bill, while other similar bills still containing various time periods to cure, have been defeated. Because of the lack of a cure period, Steinberg’s version of SB 1186 became the only accessibility bill in this session that was being seriously considered.
If passed, the following three major provisions would become law:
- Prior to filing a lawsuit, no attorneys or other parties may serve a letter that demands monetary settlement or implies that business and building owners may be liable for damages and attorney fees because of alleged ADA violations.
- Attorneys who intend to file an ADA claim must serve a notice to the intended defendants at least 30 days prior to the filing.
- Commercial property landlords need to disclose to prospective tenants in the lease agreements whether the premises are CASp-inspected or not.
Four accessibility bills were heard by the Assembly Judiciary Committee on May 8, and on that same day the Senate Judiciary Committee processed another two accessibility Bills, including SB 1186 as amended by Steinberg. The Committee passed the Bill 4-1, with the descending vote interestingly by none other than the Senate Majority Leader and author of SB 1608, Senator Ellen Corbett.
It is almost inevitable that this Bill resort to the CASp inspection as established in SB 1608 in 2008 as the real solution. A major goal of the Construction-related Accessibility Standards Compliance Act (CASCA) of 2008 is to devise some sort of protection for the property and business owners who have made a proactive effort to obtain compliance or are in the process of obtaining compliance. The CASCA considers a comprehensive survey of the property by a (CASp) key evidence to define that proactive effort.
The CASp program was a result of two years negotiation among different stakeholders, and was widely hailed by the business communities including California Chamber of Commerce, California Restaurants Association, California Business Properties Association and California Hotel and Lodging Association. Though SB 1186 would not mandate any CASp inspections, it does reaffirm that the CASp inspection program is still the best solution to reduce and eventually eliminate ADA claims in California.
While SB 1168 would not eliminate ADA lawsuits entirelyhopefully it would effectively curtail the scare tactic of demand letters. The only full protection against ADA claims, however, is to fully comply with the laws, and that begins with a CASp inspection.
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