[author: Steve Cramer]
Most business and commercial property owners have had at least one brush with a disability access lawsuit. Because a defendant in these lawsuits must pay a successful plaintiff’s attorneys' fees, the lawsuits are often resolved quickly. The event is seldom satisfying for the business owner.
To address certain shortcomings in the existing law, Senate Bill 1186 was recently adopted and became law. The bill enjoyed bipartisan majority in Sacramento, but was not supported by many disability rights groups.
The core dynamic of the new law is to give incentives for property owners to have their buildings inspected by certified access specialists, and to correct any “readily achievable” violations. The inspections are optional under the new law and, in our experience, generally run from $1500 to $2500 each. Of course that does not include the cost of correcting code violations.
Under the new law, assuming you have your business or commercial property inspected by an access specialist, and complete any readily achievable items, you get additional defenses to ADA access lawsuits. Specifically, if you are later sued for an access violation, you can reduce your statutory minimum damages to $1,000 (down from $4,000), provided you fix the violation within 60 days of receiving notice of the suit. Property owners are still on the hook for attorneys’ fees, but they can freeze the lawsuit, and the attorneys’ fees incurred by the plaintiff, and force an immediate settlement conference where the plaintiff must show what attorneys’ fees they’ve spent to date.
There are other provisions in the law that will protect owners of newly constructed projects (built after 2008), even without a certified access inspection.
As a related issue, all new commercial leases signed after July 1, 2013 must have a new provision discussing access inspections. This section requires that the lessor state in the lease whether the property has undergone inspection by a Certified Access Specialist, and, if so, whether the property has or has not been determined to meet all applicable construction-related accessibility standards (pursuant to Civil Code Section 55.33). This mandatory disclosure will likely put additional pressure on owners to obtain access inspections.
There’s little in the new law that is negative to business and much that is positive. If you need more information, please contact the author.