State Building Code Change Helps Deter Costly Disability Access Lawsuits

 

For a number of years, the business community has been victim to a small but widely destructive, atypical group of plaintiffs and lawyers using the disability laws and court system to seek monetary profits rather than access. The result has been unnecessary, costly litigation for significant numbers of California businesses across the state, with many of them closing their doors for good. In 2012, California Chamber of Commerce-supported legislation to limit frivolous litigation connected with the Americans with Disabilities Act (ADA) was signed into law. SB 1186 also promotes increased compliance with disability accessibility building codes throughout the state.

• The California Building Standards Commission has adopted the new 2013 California Building Standards Code, which will go into effect early next year. 
• In conformity with SB 1186, the California Commission on Disability Access (CCDA) has published a list of "Top 10 Demand Letters & Claims." 

Significantly, among its many provisions, the new 2013 building code permits compliance with specified construction-related accessibility standards pursuant to a variable measurement range as compared to a strict measurement standard currently used in the 2010 building code. This change will eliminate many of the ADA lawsuits alleging a barrier violation based on incorrect measurements.

To avoid confusion and unnecessary litigation so that a property owner is not sued for noncompliance with the 2010 building code when the alleged property violation would be in compliance with the variable measurement range in the 2013 building code, SB 1186 enacted special "transitional" provisions to protect property owners from unwarranted liability claims before the new code actually goes into effect next year. This change applies to claims made on and after July 1, 2013—the publication date of the 2013 California Building Standards Code.

That statute provides that a property’s compliance with property measurement standards for disability access in the 2013 building code is an alternative method of compliance until the 2013 building codes take effect next year. 

The California Building Standards Commission will have electronic versions of the 2013 code viewable at: www.bsc.ca.gov/codes.aspx.

The California Commission on Disability Access also provides information and educational materials. The commission’s website is at www.ccda.ca.gov.

New Litigation Tactics 

SB 1186 also sought to limit abusive litigation tactics used by plaintiffs' attorneys with regard to the laws requiring that places of public accommodation are accessible for persons with a disability.

One of the key provisions in SB 1186 prevents the stacking of claims. Before SB 1186, unscrupulous attorneys would have their clients repeatedly visit the same business establishment to encounter the same alleged construction-related accessibility violation in order to drive up the value of the case; as under the California Unruh Civil Rights Act, each violation triggered a minimum $4,000 statutory penalty.

In one notorious example, the lawsuit claimed that the plaintiff had been denied access to the same business, on the same basis, on 30 occasions and asked for $120,000 in damages.

SB 1186 sought to curb this abuse by mandating a court to review the reasonableness of a plaintiff’s actions in repeatedly returning to the same establishment where the individual had experienced a construction-related accessibility violation in light of the plaintiff’s obligation under the law to mitigate (reduce) damages. 

Thus, if the plaintiff’s complaint alleges that he/she went to the same fast food restaurant 20 times and each time the plaintiff encountered the same barrier violation (such as a noncompliant countertop or parking space), SB 1186 allows the judge to question the validity and reasonableness of each of the repeated visits and whether the plaintiff had a reasonable basis for not mitigating his damages. 

SB 1186 also reduced the minimum statutory penalty to either $1,000 or $2,000 for certain defendants who met specified criteria and corrected the violation within 30 to 60 days. However, for intentional violations and defendants who did not qualify for reduced damages liability, the minimum statutory penalty remains at $4,000 per violation.

Unfortunately, those same unscrupulous attorneys are trying to manipulate the anti-stacking restrictions. Instead of suing based on the same plaintiff’s multiple visits to the same business for the same violation, now restricted by SB 1186’s anti-stacking provision, some lawyers are using different plaintiffs to sue the same business for the same violation.

By filing separate lawsuits by different plaintiffs, the lawyer is not "stacking" his/her claims in the same case, and is therefore able to avoid the mandatory review by the judge as to the reasonableness of the claims alleged.

This new litigation tactic is a good reminder to businesses that although there have been legislative efforts such as SB 1186 to try to deter frivolous litigation, the best way to protect a business against such litigation is to have the property inspected by a Certified Access Specialist (CASp) to identify and remedy any potential construction-related accessibility issues. 

More information, including a list of CASps, is available from the Division of the State Architect, www.dgs.ca.gov.