Suggestion: be pro-active and have your business inspected by experienced ADA attorneys at Corfee Stone & Associates. We provide ADA “to do” reports, plus provide legal advice. Our reports are confidential, non-discoverable.
The California Unruh Act entitles a disabled plaintiff $4,000 per visit to a business that has “construction related barriers.” Construction related barriers is a fancy term that means your business does not comply with the Americans with Disabilities Act (ADA) and/or Title 24 of the California Code of Regulations. These lawsuits are largely driven by attorneys who over-prosecute the case to purposefully incur more in attorney’s fees. Even if you immediately and voluntarily agree to make access improvements, they will not STOP litigating. Unfortunately, the Unruh Act has created a profitable money making business for the disabled and their counsel under the guise of enforcing civil rights laws. These serial litigants remain silent, never warn you, secretly visit your facility a couple of times, take pictures, 2 and then hail you into Federal Court for greenbacks. So for example, an entrance door must be 32” wide, and if it is 31 ½ wide, a disabled plaintiff who visits your facility three times could recover potentially $12,000 in damages plus attorney’s fees for the time it took to obtain that court order.
In 2016, the California legislature has tried to carve out a narrow exemption for small businesses. At first glance, this defense seems too good to be true. And it is. When you read the fine print, qualifying for it is difficult unless you are pro-active. In brief, some of the requirements are as follows:
1. First, you are entitled to the exemption against paying any damages if you have a business that employs 50 or fewer employees over the past three years;
2. Your structure or area was inspected by a California Access Specialist (CASp) and you have a CASp report or a “CASp determination pending”;
3. The CASp inspection occurred before the disabled plaintiff filed the lawsuit, and/or demand letter (maybe do not wait to get sued);
4. You lacked notice of the alleged violation prior to the CASp inspection (this is not clear and creates a grey area!);
5. You corrected the alleged violations from the CASp’s report within 120 days from the date of the inspection (hurry your CASp to finish the report);
6. The structure or area inspected had not been previously altered or modified prior to the CASp inspection under your ownership. (Check your permit files with the local building officials, the plaintiff’s attorneys do!)
If you exceed the 120 days, the exemption will not apply unless you have a permit and then you must make the corrections within 180 days of the date of the inspection.
In litigation, you must disclose your CASp report to the disabled plaintiff to benefit from this defense. Furthermore, you may only claim protection from liability for the minimum statutory damages for each structure or area inspected by a CASp.
At Corfee Stone, we inspect your site because as attorneys, we are experienced and knowledgeable about case law interpretations regarding the ADA, the codes, defenses, exceptions, and so forth. Most CASps are not attorneys. When you finish the work, we select an experienced CASp to either prepare a declaration and/or verify the compliance and write the A+ report.