ADA Claims are Back and on the Rise

In 1990, Congress enacted Title III of the Americans with Disabilities Act (“ADA”) to eliminate barriers to disabled individuals’ access to public spaces. Dealerships must comply with an array of ADA requirements unless they meet the “readily achievable” cost benefit exception.  As with other protection statutes, plaintiff lawyers use the ADA’s injunctive relief remedy to leverage settlements.  The California Disabled Persons Act was amended last year to curb litigation and encourage compliance with disability access laws. Despite—or perhaps because of the amendments, there has been a recent uptick in lawsuits.  Such lawsuits include those based upon unlawful use of “disabled” parking spaces. Plaintiffs allege they are denied access to dealerships because employees are using disabled spaces to park inventory and facilitate customer test drives.

Lawsuits brought in California typically tack on an alleged violation of the Unruh Civil Rights Act, Civil Code section 51, et seq. They do so in order to capitalize on its minimum statutory remedy of $4,000 per violation and attorney’s fees and costs. Of course, an Unruh Act claim based on an ADA violation (such as denying access to disabled parking spaces) must be supported by proof of intentional discrimination, a very tough standard to meet.  However, the Unruh Civil Rights Act was amended by the enactment of the California Disabled Persons Act (“DPA”), California Civil Code section 54, et seq.  The DPA applies to “construction related accessibility claims” and provides for liability without the requirement of proving discriminatory intent.   The DPA merely requires proof of denial of access or embarrassment and harassment as a result of the barrier to access. In its original form, the DPA allowed plaintiffs to stack statutory penalty claims. This framework increased litigation. It also created another state program – Certified Access Specialist Program (“CASp”), which is the authority capable of certifying a California property as ADA compliant. 

In September 2012, the California State Legislature enacted SB 1186 in an effort to limit frivolous DPA claims and encourage compliance with disability access laws. Highlights of the legislation, effective January 2013, include:
 

• demand letters cannot seek monetary relief, and copies of demand letters must be sent to the state bar and California Commission on Disability Access
• potential “stacking” of multiple claims to increase monetary damage is limited by requiring plaintiffs to explain the need for multiple visits to the same business with a known uncorrected barrier to access
• statutory minimum damages against business owners can be reduced to $1,000 per violation if they correct alleged violations within 60 days of receiving a complaint and meet CASp guidelines (Civil Code section 55.56)
• complaints must be verified by plaintiffs, detailed, and copies must be sent to the California Commission on Disability Access
• complaints must include an “advisory” supplement regarding defendants’ rights pursuant to Civil Code section 55.3, and 55.54 (defendants entitled to a “stay” to conduct an early evaluation conference)
• complaint must include a judicial council form “Defendant’s application for stay of proceedings and early evaluation conference”

(See Senate Bill No. 1186)

Disability lawyers are learning how to litigate around these new requirements and are proceeding with lawsuits seeking at least $1,000 per violation along with attorney’s fees and costs. Obstruction of disabled persons designated parking spaces, regardless of intent, is one of many new allegations dealers must face.

For more information about this alert, please contact Aaron Jacoby or George Koumbis.