ADA News

October 2012

California Grocers Association, CGAbulletin

Senate Bill 1186, introduced by Senator Bob Dutton (R-Rancho Cucamonga), seeks to limit predatory lawsuits based on construction-related violations of the Americans with Disabilities Act of 1990 (“ADA”) and California’s Unruh Civil Rights Act.  Currently, an individual who can establish an accessibility violation may obtain injunctive relief, and recover up to three times the amount of their actual damages, but not less than $4,000.00 per visit, and recover attorneys’ fees for pursuing claims under these laws.  Because the claims are financially lucrative, and because the laws pertaining to construction-related accessibility contain very specific and technical requirements that make it easy to find violations, plaintiffs and potential plaintiffs have used these laws to extract large sums of money from California retail grocers and property owners.  As Senator Dutton has noted, although California has 12 percent of the nation’s population, approximately 40 percent of the lawsuits related to accessibility violations in the United States are filed in California. Of course, this number ignores the significant number of potential lawsuits that are settled in California before a claim is filed.

Although SB 1186 is not the first bill of its kind to be introduced – or even the only bill introduced this session addressing accessibility issues – SB 1186 appears to be the only bill addressing this issue that is still seriously under consideration. As originally introduced, the bill contained provisions requiring notice to an offending party of alleged accessibility violations prior to a claim being filed, and provided that offending party with a right to cure period to address the violations.  The original bill also contained language allowing a court to consider a plaintiff’s history of pursuing access claims in awarding damages.

Along with the addition of Senate President Pro Tem Darrell Steinberg (D-Sacramento) as a co-sponsor came significant amendments to the bill, including most notably the elimination of the right to cure language.  However, the current version of the bill still contains provisions that should benefit both retailers and property owners.  For example, if enacted in its current form, the bill would ban “demand for money” letters prior to the filing of a lawsuit, and also require attorneys to provide a notice of alleged violations to potential defendants 30 days before a lawsuit is filed in cases where money damages will be sought. The notice will provide potential defendants with an opportunity to remedy any deficiencies, and thereby reduce the number of actionable visits to the business location by a plaintiff before a lawsuit is ultimately filed.

The amended bill cleared the Senate on a 36-0 vote, and is currently awaiting consideration in the Assembly.

Elizabeth B. Stallard is Counsel at Downey Brand, LLP. She represents employers  in ADA and class action litigation in state and federal courts in both California and Nevada. Dale Stern is a partner in the Food & Agriculture Practice at Downey Brand and has served as CGA’s outside general counsel for 23 years.

Pending Publication by the California Grocers Association. Republished with permission.