Since the Americans with Disabilities Act of 1990 (“ADA”) was passed, businesses (primarily businesses that qualify as places of public accommodation like hotels, recreation, transportation, education, dining, and stores), have been required to comply with its regulations, which were enacted to prohibit discrimination based on disability. While the ADA was amended in 2008 it did not change the fundamental nature of the law: that businesses are on notice that they must comply with the ADA or face potential lawsuits. Under Title III of the ADA, all new construction (construction, modification or alterations) after the effective date of the ADA (approximately July 1992) must be fully compliant with the Americans With Disabilities Act Accessibility Guidelines (ADAAG). But Title II also has applications to existing facilities. One of the definitions of “discrimination” under Title III of the ADA is a “failure to remove” architectural barriers in existing facilities. What this means is, even if a facility has not been modified or altered in any way after the ADA was passed still has obligations to become compliant. The standard is whether “removing barriers” (typically defined as bringing a condition into compliance with the ADAAG) is “readily achievable”, defined as “…easily accomplished without much difficulty or expense.” The statutory definition of “readily achievable” calls for a balancing test between the cost of the proposed “fix” and the wherewithal of the business and/or owners of the business. Thus, what might be “readily achievable” for a sophisticated and financially capable corporation might not be readily achievable for a small or local business. Besides the federal government, state and local governments have also weighed in on the issue.

Unfortunately, many businesses are sued by plaintiffs who file what can only be described as “drive-by” lawsuits. These litigants have been known to go street by street, suing each business that they see. Sometimes the litigant does not even come to the business that has been sued. While the ADA is wide-reaching, it is a California state law that allows Plaintiffs to sue for damages.

Under the California Unruh Civil Rights Act, a Plaintiff may recover (1) special and general damages; (2) an amount no less than $4,000.00 and no more than three times the special and general damages up to a maximum of three times the special and general damages, but in no case less than $4,000.00; and (3) attorney’s fees for each violation of the Act.

Unfortunately, this has led to thousands of lawsuits being filed a small group of individuals known as “High Frequency Litigants”. Inundated by these serial predatory lawsuits, lawmakers sought to reform California disability access laws. On October 10, 2015, the California legislature passed Assembly Bill No. 1521. This law added Section 425.55 to the California Code of Civil Procedure. This required plaintiffs to disclose the number of previous lawsuits filed, the reason why the plaintiff was in the geographic location of the alleged violation, and why he/she visited the site, before a “high-frequency litigant” can file a lawsuit in California state courts.

AB 1521 defined a high-frequency litigant as “a plaintiff who has filed 10 or more complaints alleging a construction-related accessibility violation within the 12-month period immediately preceding the filing of the current complaint alleging a construction-related accessibility violation or an attorney who has represented as attorney of record 10 or more high-frequency litigant plaintiffs in actions that were resolved within the 12-month period immediately preceding the filing of the current complaint alleging a construction-related accessibility violation” 

AB 1521 also allowed businesses to stay a lawsuit and move for the mandatory scheduling of an evaluation/settlement conference with a judge if the complaining party is a high frequency litigant or if the business owner had previously obtained a certificate from a Certified Access Specialist (CASp) stating that the business complied with accessibility standards and regulations.

AB 1521 defined a high-frequency litigant as “a plaintiff who has filed 10 or more complaints alleging a construction-related accessibility violation within the 12-month period immediately preceding the filing of the current complaint alleging a construction-related accessibility violation or an attorney who has represented as attorney of record 10 or more high-frequency litigant plaintiffs in actions that were resolved within the 12-month period immediately preceding the filing of the current complaint alleging a construction-related accessibility violation”

AB 1521 also allowed businesses to stay a lawsuit and move for the mandatory scheduling of an evaluation/settlement conference with a judge if the complaining party is a high frequency litigant or if the business owner had previously obtained a certificate from a Certified Access Specialist (CASp) stating that the business complied with accessibility standards and regulations.

Unfortunately, litigants have found two ways around this:

• Filing in Federal Court: Federal courts have not required high-frequency litigants to pay the additional filing fee, and Federal courts have signaled that they are not required to grant a stay that a business would otherwise be entitled to in state court.
• Plaintiffs argue that a request to waive court fees, if granted, also applies to the supplemental filing fee for high-frequency litigants. Despite there being no language suggesting that this fee is waivable, there is no language that explicitly denies it. Since many high-frequency litigants are disabled, they qualify for a fee waiver. This defeats the purpose of the law, but until the legislature makes this abundantly clear, courts and defendants will suffer from this toothless regulation.

On May 10, 2016, then Governor Jerry Brown signed into law Senate Bill No. 269, which provided an exemption from statutory damages for small businesses. What are small businesses? To qualify as a small business, it must have 25 or fewer employees and less than $3.5 million in gross receipts annually over the past three years. However, this only provided protection from technical violations (things like parking lot paint having faded away, or signage in the wrong place or at the wrong height) for 15 days.

Because of what the state of California calls “high-frequency litigants” measures have been enacted by the state of California that affords some relief and protections for small business.

It’s not all doom and gloom for California businesses, because there are steps you can take, as a small business owner, to avoid these lawsuits. The first is simple: proactively reach out to a CASp and have your property inspected for ADA violations. You will be given a report that notifies you if your property has any violations, and how to remedy them. You will then be permitted to affix a sticker to your front door, showing that the property has been CASp-inspected. Many litigants never come to these small businesses themselves. They (or their attorneys) often enlist a third party to “inspect” these properties. These individuals are often self-proclaimed experts in ADA compliance, but actually do not have any certification, and are not CASp-certified. They do not make a detailed inspection of your property, often because they’re trying to be inconspicuous. So they look for the most glaring and obvious ADA compliance violations.