SACRAMENTO - A bill that gives small businesses the opportunity to fix Americans with Disability Act (ADA) violations before getting sued has been signed by California Gov. Brown.
Senate Bill 269, sponsored by Sen. Richard D. Roth (D-Riverside), passed out of the California Senate by a 38-0 vote on April 25, after the Assembly’s 79-0 vote of approval on April 21.
The bill amends the Civil Code, and the Government Code, changing how construction-related accessibility claims proceed under the ADA and California’s Unruh Civil Rights Act of 1959. It allows businesses with payrolls of 50 workers or less to hire a certified access specialist to conduct an inspection and receive a full 120 days to fix problems before facing penalty.
SB 269 is a modified version of last year’s SB 251 which Brown had vetoed
“SB 269 removes the tax credit that was the focus of the Governor’s veto, reduces the employee ceiling for qualifying businesses from 100 to 50 employees, and makes other clarifying changes,” Roth stated in a press release.
Proponents of SB 269, such as the California Chamber of Commerce and 26 other organizations—including the American Society of Interior Designers; California Ambulance Association; California Grocers Association and League of California Cities—supported the bill in part because it can “assist businesses who are trying to ensure they are compliant from being subject to frivolous claims or litigation,” according to an April 15 letter from the bill’s supporters to the California State Assembly.
NBC Bay Area recently reported that its review of more than 10,000 ADA lawsuits filed since 2005 in the five states with the highest disabled populations show that more than 70 percent of the cases are filed in California.
"More lawsuits have been filed in California (7,188) than Florida (3,303), Pennsylvania (677), Texas (651) and New York (1,322) combined," the report noted.
SB 269 provides small business 15 days upon getting sued or receiving a written notice to fix three types of ADA violations without statutory penalties. These violations range from exterior and interior signage; and parking lot paint stripes to detectable warning surfaces.
This 15-day ADA compliance provision of SB 269 makes good business sense, Kim Stone, president of the Civil Justice Association of California, told the Northern California Record.
“For at least some minor violations, before the business gets sued, the plaintiff’s lawyer has to tell them what the problem is and give them a chance to fix it, commonly called ‘notice and opportunity to cure,’” she said.
Each minor violation can cost a business a $4,000 penalty. That expense does not include lawyer fees that go to plaintiff's counsel.
In addition, SB 269 requires municipal (city and county) building departments to expand their outreach to businesses regarding ADA compliance, and accelerate the permit process for all businesses with 100 employees or less. Further, the bill directs the California Commission on Disability Access to facilitate the training of certified access specialists (CASp), and their inspecting of businesses’ ADA requirements and standards.
“We recommend small businesses hire CASps for an inspection and make any necessary improvements,” Stone said.
Under SB 269, businesses must hire a CASp before the filing of a lawsuit or written notice of an ADA violation.
Brian Ferguson, deputy director of the state's Department of General Services, told the Northern California Record that in 2015 there were 625 CASps, up from 583 in 2014.
Disability Rights California opposed SB 269.
“Current state access laws define small business as a business with 25 employees or less,” wrote Evelyn Abouhassan, the group’s senior legislative advocate in an April 13 letter to Assemblywoman Lorena Gonzalez, D-San Diego.
“SB 269 goes too far because it extends protections and limits liability for civil rights damages to any business with up to 50 employees," she wrote.
The law will go into effect Jan. 1, 2017.