Business interests hope the bipartisan support shown for Americans with Disabilities Act (ADA) reform in California earlier this year translates to the federal level when Sen. Jeff Flake’s bill, the ADA Education and Reform Act of 2016, is voted on by Congress after the first of the year.
In May, Gov. Jerry Brown signed into law a bill by State Sen. Richard Roth that gives small businesses a chance to fix ADA access violations at their facilities before being fined or hit with a lawsuit. The bill provides that certain ADA noncompliance issues, like chipped paint on parking lines and the color of parking signs, do not cause a person difficulty, discomfort or embarrassment and allows businesses with fewer than 50 employees to correct those issues within 15 days.
The California legislation also exempts businesses from liability for “minimum statutory damages” related to certain ADA noncompliance issues for 120 days if the area in question has been inspected by a certified access specialist and the issue is rectified within that time period. The bill passed both the assembly and the senate with unanimous yes votes and three abstentions.
Flake’s bill would, at the federal level, make it more difficult for civil action to be taken against businesses for disability access issues. The bill by the U.S. Senator from Arizona requires the person claiming wrongdoing to submit written notice detailing the access issue to the owner or operator of a business. It gives a property owner or operator 60 days from receipt of that notice to respond with a written description outlining planned improvements and remedies to the issue. It also allows 120 days to take corrective action after that notice is given. Under the proposed law, civil action can only be taken if these conditions are not met.
The International Council of Shopping Centers (ICSC), among many other business groups, supports Flake’s bill. “ICSC has about 55,000 members, and we represent shopping center owners, developers, retailers and so on,” Betsy Laird, senior vice president of global public policy, told the Business Journal.
“The common thread is that we represent businesses open to the public. And those businesses are affected by a section of the ADA law, Title III, which is that businesses open to the public must provide access to the public,” Laird said. “And a number of our members have been sued in federal court, in state court, with regards to being in violation or allegedly in violation of Title III of the act.”
Although California only has about 12% of the country’s disabled population, about 40% of the nation’s ADA-related lawsuits occur in the state, Laird said. While California has made headway in reducing frivolous lawsuits with the passage of Senate Bill 269 and previous legislation, Laird said litigants in California have simply begun filing their claims at the federal level instead of the state level, so businesses within the state are still impacted.
“What we’re told is, basically the trick is that the lawyers are savvy enough to suggest an amount for settlement which is just below what it would cost to perhaps fight this out in court,” Laird said of frivolous ADA-related lawsuits. “And so there is little incentive to try to take it to court and litigate. People tend to just get out their checkbook and write a check.”
Laird continued, “The ADA has been around for over 25 years, and our members absolutely support the intent and the spirit of the act. I mean, it has been a historical civil rights law that has benefited so many.” She added, “It seems to me that when this law was enacted over 25 years ago, it was never contemplated that this sidebar practice would come to be. It has continued to persist, if not grow, over time. And it pops up everywhere. Something needs to be done about it.”
ICSC supports Flake’s legislation in the hope that a federal-level policy will help rectify this issue.
In a statement provided to the Business Journal, Flake said, “For these trolls to abuse the ADA as a means to line their pockets is beyond the pale. Small businesses ought to have the chance to fix these problems before being saddled with costly.