SACRAMENTO – A bill sponsored by California State Rep. Jerry McNerney would give businesses 90 days to correct Americans with Disabilities Act (ADA) violations before a lawsuit could be filed.
Current California law allows for a $4,000 penalty for each violation. Often times, the fixes to businesses in order to make them compliant would cost far less than the $4,000 penalty amount.
Kim Stone, president of the Civil Justice Association of California, says a lot of businesses aren’t even aware they aren’t compliant with the ADA.
“We have such complicated and technical ADA laws at both the federal and state level that it’s very difficult for well-meaning businesses to be fully compliant,” Stone told the Northern California Record. “Businesses don’t realize that they aren’t compliant, and many of the violations are minor or technical and may not even impede access.”
Because California law makes every ADA act violation subject to penalty, it allows plaintiffs to get $4,000 in liquidated damages plus legal fees. Supporters of McNerney's bill encourage accessibility, but reason the suits are all about money.
“One of the things I hear is that when these cases settle, they usually settle oftentimes for money and not a requirement that they actually fix the problem,” Stone said. “The plaintiff lawyer is out for money, not for justice or to improve access. It’s really galling that a handful of lawyers are going up and down the state making thousands in lawsuits without even improving access. It’s horrible.”
The bill would provide a relatively common-sense solution by giving businesses notice and a chance to fix the problem before they could be sued. The proposed solution could reduce the justified lawsuits and improve access because businesses could fix the problem rather than pay a lawsuit.
Smaller businesses are at a disadvantage because they don’t have access to compliance officers, lawyers and architects, who can help them figure out what needs adjusted. These businesses may not be aware of changing accessibility rules or know that they face liabilities in the thousands to tens of thousands for not being compliant.
Stone says she thinks the measure's chance of getting approved is a long shot, but offered a suggestion for businesses in the meantime.
“Nobody comes out and tells a new business whether it is ADA compliant," she said. "That’s on you as a business owner. In order to reduce the chances of being hit with a lawsuit, hire a certified access specialist (CASP), who is qualified and knowledgeable on ADA compliance, to come out and perform an evaluation. If you aren’t compliant in an area, the CASP will help you come up with a plan, a financially feasible way to make the changes necessary. It is tricky to be fully compliant; there are a lot of little gotchas that people don’t know about. Paying for a CASP is going to be less expensive than paying for a lawsuit because you weren’t compliant under the ADA law. Until the law changes to something more reasonable, the only way to defend yourself is to be fully compliant.”