The State of ADA Lawsuits: Then and Now. Has CASp SB 1186 helped?

A Quick Look Back …
clint_eastwood
In 2000, Clint Eastwood was sued for two-minute infractions found inside his historic California Inn.  Even though the jury found Eastwood responsible for two minor infractions, they declined to order him to pay anything … except for the $577,000 in attorneys’ fees.

rivercitybrewpict5Several years ago, River City Brewing, a popular downtown Sacramento bar, decided to fight an ADA lawsuit and eventually had to declare bankruptcy after a court ordered it to pay $145,000 to compensate the disabled complainant’s lawyers.

The main reason the River City Brewing suit was filed was because the restaurant placed some seating (less than a third) in a mezzanine area not reachable by wheelchair, which was in accord with the architectural plans the city had approved.

I remember a time when — if a defendant refused to immediately settle — the complainant’s counsel would warn and threaten to get everything they could and more monetarily and that the “price” of settlement would go through the roof!

Has the lawsuit-happy environment in California declined in the last 14 years or does it remain unchanged?

Better yet, should a business facing objectionable ADA litigation in 2014 dig in and resist, and if so, at what cost?

Clint Eastwood may have proved his point, but the fact remains that what a celebrity can afford is way beyond most people’s pocketbook.

If you choose to fight, you (the defendant) face a scary prospect.  You could lose and get hit with significant legal fees from a prolonged court battle, adding up to very serious money.

SB 1186 was created to help reduce frivolous lawsuits pertaining to non-ADA compliant commercial real estate properties and buildings. Many commercial real estate owners and small business owners throughout Sacramento and throughout California are no doubt familiar with stories, and even personal experiences, involving written demands for either timely compliance with ADA requirements or a cash settlement to make the complaint go away.

I understand that ADA compliance is an important necessity that provides the ability for disabled persons to access commercial real estate buildings and multifamily apartments throughout our great state of California.

However, there should be an appropriate balance that doesn’t impact small businesses or property owners to the extent of having to close or curtail operations due to the high cost of complying with necessary ADA improvements.

SB 1186, co-authored by California State Senate President Pro Tem, Darrel Steinberg, seeks to eliminate the abusive profiting that has occurred from frivolous lawsuits involving opportunistic plaintiffs looking to earn a quick buck. Upon ratification of this bill, legitimate requests for ADA compliance would still be warranted; however, business or commercial real estate owners throughout California could rest assured knowing they would no longer be deliberate targets for illegitimate purposes.

So is it working?  Have the frivolous suits been reduced?

Yes and No!

What I do know is this:  if commercial property and multi-family housing owners deal with their properties access needs head on by creating a plan that works, they have a much higher success rate of not being sued than those who do nothing and stick their head in the proverbial sand.

So what is this plan I keep talking about?

Since 2008, I have been producing CASp inspection reports for my clients. Every inspection report contains a list of all barriers found and a detailed scoping of action items and how to remove these barriers. I tell my clients they must create a “logical plan” … one that works within an established budget and does not create and “undue financial burden” or drastically alter the usability of the facility.

After six years of doing CASp inspections, we have some interesting “track history” data.

Multiple clients have contacted me over the last 8 months to tell me their story of success with creating and working their plan.

It is wonderful to see such high numbers of success by those who made a plan and stuck with it.

The common theme with these clients is that while none of them knew what to do in the beginning, but they started where they started (at the beginning) and made steady progress forward.

One of my clients told me that since working with me on several of her properties, she has learned so much about ADA and what her properties truly provide, she is not scared of a “drive by” suit any longer. She knows exactly what work she has planned for voluntary phased barrier removal and what items she is waiting to complete when a permit is pulled during a vacancy lease out.

Having a plan does not mean you have to do everything at once. The plan itself is intended to bring some logic and structure to the process of barrier removal— not burden the owner with excessive costs over a short period of time.

A solid plan is the best line of defense in the fight against frivolous ADA lawsuits.

What’s Your Plan?

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One Response to “The State of ADA Lawsuits: Then and Now. Has CASp SB 1186 helped?”

  1. Ken March 1, 2014 at 4:11 pm #

    This has got to be one of the best articles I’ve read on ADA compliance.

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