In addition to allowing disabled employees to sue their employers for discriminating or refusing to provide reasonable accommodations, both federal and California law allow disabled persons to sue businesses and places of public accommodation for failing to comply with a myriad of accessibility requirements, such as having wheelchair ramps or the proper number of handicapped parking spaces. While the federal Americans with Disabilities Act (ADA) allows only for the recovery of attorneys’ fees and not damages, California’s law allows plaintiffs to recover a minimum of $4,000 in damages in addition to attorneys’ fees. It’s no wonder that more than 40 percent of all disability access cases filed in the United States are filed in California. 
Federal, CA law set access requirements
Title III of the ADA provides that individuals with disabilities shall not be discriminated against and shall have full and equal enjoyment of any place of public accommodation. The law allows disabled persons to sue businesses that fail to comply with the many regulations specifying the accessibility requirements and mandating the removal of barriers to access. The requirements differ for existing facilities and new construction, and detailing them is far beyond the scope of this article. Title III allows individuals to sue for injunctive relief requiring businesses and places of public accommodation to comply with the law and to recover attorneys’ fees, but it does not allow for the recovery of damages.
California has two state laws that cover access rights in places of public accommodation for disabled persons: the Unruh Civil Rights Act (UCRA) and the California Disabled Persons Act (CDPA). The UCRA provides that “all persons” are entitled to the “full and equal accommodations, advantages, facilities, privileges or services in all business establishments of every kind whatsoever.” Under the UCRA, a plaintiff can obtain damages of no less than $4,000 for each offense. The CDPA provides that individuals with disabilities shall be entitled to full and equal access to any place to which the general public is invited. Under the CDPA, a plaintiff can recover damages of no less than $1,000 for each offense.
Many of the ADA’s accessibility requirements are common knowledge—for example, providing handicapped parking spaces, wheelchair ramps, and grab bars in toilets. Others are extremely technical and likely to be known only by attorneys and so-called serial plaintiffs—i.e., individuals who file multiple lawsuits. In addition, new requirements are issued frequently, making it difficult for business owners to stay in compliance.
For example, the U.S. Department of Justice (DOJ) released new compliance standards effective March 2012 that included detailed specifications for many long-standing requirements, such as the maximum allowable slope of a wheelchair ramp and the exact height of towel dispensers in bathrooms. Those standards also required hotels with pools to install “pool lifts” for disabled patrons.
As soon as new requirements are passed, serial plaintiffs go on the lookout for violations and an opportunity to file more lawsuits. The practice is sharply debated, with disability-rights advocates claiming that such lawsuits are the only way to force businesses to comply with the law and critics claiming that most plaintiffs are only out to make money, seeking quick settlements in exchange for dropping their case.
Recent legal developments lead to more lawsuits
In 2012, several small business owners threatened with access lawsuits reached out to Senator Dianne Feinstein (D-California) to complain that ADA lawsuits were threatening their chances for survival. Feinstein, in turn, reached out to California Senate leader Darrell Steinberg (D- Sacramento) to request action. In response, in September 2012, the California Senate passed Senate Bill (SB) 1186, designed to reduce coercive lawsuits and encourage businesses to voluntarily comply with the law. Among the law’s provisions is a ban on plaintiffs’ lawyers sending businesses demand letters asking for a specific amount of money to settle.
Other provisions of SB 1186 serve to reduce penalties on business owners in certain situations. First, when the owner has had the property evaluated by a certified access specialist before being sued, damages are limited to $1,000 for each alleged offense if the property owner has corrected all violations that are the basis of the claim within 60 days of being served with the lawsuit. Second, damages are reduced to $2,000 for each offense if the business owner or tenant is a small business and can demonstrate that all construction-related violations were corrected within 30 days of being sued. However, those provisions may not have had their intended effect.
According to a recent article in the San Jose Mercury News, a search of federal court databases shows that the number of ADA cases filed in California rose 34 percent in the 17 months since the new law took effect in January 2013. The belief is that lawyers are now skipping the demand letter and going straight to court with a lawsuit. The reduced fines have yet to have a deterrent effect.
On the federal front, the 11th Circuit found in November 2013 that a person can be a “tester” of disabled-access compliance and could have standing (the legal right) to bring a lawsuit against an establishment even if he was not a patron of the establishment he is suing. That ruling has cleared the way for individuals to bring dozens, even hundreds, of lawsuits against multiple businesses as “serial testers.” According to an October 2014 article in the Wall Street Journal, through June 30 of this year, plaintiffs filed 1,939 ADA access lawsuits compared to 1,254 over the same period of time in 2013—a 55 percent increase.
Compliance can be costly
Most business owners want to comply with access laws. After all, an estimated 18 percent of the population is disabled, and removing access barriers can result in more business. However, compliance can be costly. A new pool lift will cost at least $3,000. Remodeling a bathroom to widen the stalls can cost tens of thousands of dollars. Such costly renovations can put many mom-and-pop establishments out of business.
And unfortunately, the laws are so complex that the first time many business owners realize they aren’t in compliance is when they get hit with a lawsuit. On top of that, many businesses not only have to pay to fix the issues, but they also have to pay the plaintiff’s attorneys’ fees.
Bottom line
Disability-access lawsuits are not likely to go away anytime soon. Since most large establishments have already been sued many times, the focus for many serial plaintiffs is on small businesses. If you are sued, settling
quickly may seem cheaper and more expedient than making costly renovations to remedy the violations, but such a settlement won’t prevent you from getting sued again. SB 1186 may create an incentive for business owners to hire a certified access specialist to perform an inspection before a lawsuit is filed. Such inspections will limit your financial exposure in a lawsuit, and being proactive could be a better alternative to simply hoping you don’t get sued.
Matthew A. Goodin is an attorney with Epstein Becker & Green, P.C., in San Francisco. He may be contacted at mgoodin@ebglaw.com.