Tuesday, November 1, 2016

Drive By Lawsuits - Americans with Disabilities Act (ADA)

UPDATE - September 29, 2016

Thanks to BOMA California members, laws passed in California have made it more difficult and less profitable for attorneys to file drive by ADA related lawsuits in the state courts of California. In response, these same attorneys are now filing lawsuits claiming ADA protection under federal law. Its time take the fight to Congress to get sensible laws passed nationwide to curb drive by lawsuits.

In a Congress known for its inaction, there seems to be a real appetite in both chambers to pass federal legislation to curb drive by  lawsuits. The ADA Education and Reform Act, which calls for a notice and cure period prior to the commencement of a lawsuit, passed through the House Judiciary Committee earlier this year and is now being considered by the full chamber. The momentum in the House prompted discussions with members of the Senate to introduce their own companion legislation.

As such, BOMA International is putting out the call to members to send in their stories of their California properties being threatened under the federal ADA. Everything will be kept anonymous.  Please reach out to Dylan Isenberg (disenberg@boma.org) with any stories and contact johnb@boma.com or kenc@boma.com at BOMA San Francisco if you have any questions.
Original Post - July 21, 2016

California has 40 percent of the nation’s ADA lawsuits but only 12 percent of the country’s disabled population. So over the last few years BOMA California members have worked closely with legislators and the Governor to move forward reforms that curb lawsuit abuse while promoting increased compliance with disable accessibility codes.

The effort is the culmination of a multi-year, bipartisan effort, that included leadership from state level elected officials and federal support coming from Senator Dianne Feinstein.

The first, in 2012, was SB 1186. The law:
  • Reduced statutory damages and litigation protections for defendants who correct violations.
  • New provisions to prevent stacking of multiple claims to increase statutory damages.
  • Banned demands for money and created new rules for demand letters.
  • New pleading with specificity requirement for demand letters and complaints.
  • State Bar review of demand letters; violation of demand letter and demand for money provisions would begrounds for attorney discipline.
  • Mandatory evaluation conference at option of either defendant of plaintiff.
  • Mandatory notice to property tenant of CASp status of the property.
  • California Commission on Disability Access (CCDA) to receive copies of complaints and demand lettersand tabulate data on top ten types of violations alleged.
  • CCDA to promote and facilitate accessibility compliance.
  • Required information regarding disability access compliance upon renewal of business license.
  • New add-on fee of $1 to business license fee to strengthen CASp program and develop educational and training resources at state and local level to promote compliance.
Among other things, this measure: prohibits pre-litigation demands for money by attorneys; puts into place new provisions to prevent “stacking” of multiple claims to increase statutory damages; reduces statutory damages and provides litigation protections for defendants who correct violations; and establishes priorities for the California Commission on Disabled Accessibility that promote and facilitate disability access compliance.

The second, signed into law in 2016, was SB 269 (Roth) which:
  • Establishes a presumption that certain technical violations are presumed to not be a cause for action.
  • Applies to small businesses (25 or fewer employees).
  • Business has 15 days to correct the violation.
  • Technical violations include non-access issues such as wording and placement of signs, lack of signs, order of signs, color of signs and parking stripes, paint issues (faded, chipped, etc) on otherwise compliant parking spaces, certain warning surface issues.
  • The law States that the above presumption affects the plaintiff’s burden of proof and is rebuttable by a preponderance of the evidence showing that the plaintiff did, in fact, experience difficulty, discomfort, or embarrassment on the particular occasion as a result of one or more of the technical violations.
  • Protects certain businesses from liability for minimum statutory damages in a construction-related accessibility claim made during the 120 day period after the business obtains an inspection of its premises by a CASp, under specified conditions.
Among other things, this bill finally gives businesses a chance to address and fix certain violations – and actually into compliance - before heading in court. 

Together these two laws are a step toward helping more properties become compliant with ADA laws and actually increase accessibility, while minimizing unnecessary lawsuits.

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