Despite the fact that a law was enacted in 2013 to curtail “drive-by” Americans with Disabilities Act access lawsuits, the practice has been revived by crafty plaintiff attorneys. According to recent news reports, employers still receive letters from lawyers who demand payment on behalf of disabled clients in exchange for not suing the establishment for violating ADA access rules. The lawyers are banking on the business owners not knowing a law that took effect in 2013 that bars attorneys from making monetary demands in initial letters complaining about a possible ADA violation.
If you have a business that deals with the public, you need to understand where you stand legally and what recourse you have if you receive one of these letters.
Here’s how the full-court press works:
A business receives a letter from an attorney who says they represent a disabled client who was unable to enter the facility because there was no wheelchair ramp, other disabled access or no parking spots for disabled individuals.
The letters usually state that failure to comply with the ADA amounts to disability discrimination and that violators can be required to pay three times a client’s damages, but no less than $4,000 for the offense, as per California code. Some lawyers will even list multiple ADA “infractions” that they see when driving by and demand $4,000 for each.
The letter usually goes on to state that the business could also be ordered by a court to make the necessary modifications and upgrades to accommodate disabled customers. It also states that the business, if found liable, could also be ordered to pay the plaintiff’s attorney fees and costs.
Here is more text from one of these letters:
“We are willing to settle this matter as follows:
1. You will obtain an accessibility evaluation of the property.
2. You will make all required repairs and accessibility barrier removals.
3. You will pay the sum of $4,000.00 to reimburse my client for costs, attorney fees incurred and for damages.”
If the above is done, the lawyer promises to “refrain from filing a complaint in the U.S. District Court.”
But these demands are illegal
These types of demands for money were made illegal by SB 1608, a measure that became law in 2013 and allows an employer a grace period to fix any violations before being sued. This was supposed to address the “shakedown” lawsuits that have recently resurfaced.
The complaint letter may actually be pointing out a real ADA violation on your property, but you are in no way required to pay the senders anything to make them walk away, under SB 1608.
If you receive one of these letters, this is how the law protects you now:
• Businesses have 60 days to fix an ADA violation, after receiving notice of the violation, if their facility was completed after January 1, 2008.
• SB 1608 sets up a process whereby business owners can voluntarily hire a CASp to inspect their buildings to ensure compliance with disability access standards and obtain an inspection report as proof they did so.
• Qualified businesses can also be able to get damages reduced from $4,000 to $1,000 when the violation is corrected (these are civil fines and they don’t go to the plaintiff or the attorney).
• A small business that does not have a CASp inspection, and which has fewer than 25 employees, has up to 30 days to correct a violation. The statutory fine for a violation can be reduced from $4,000 down to $2,000 if the corrections are completed within 30 days.
• Businesses whose structures have been approved by CASps will be able to request a window sign signifying they have been CASp-inspected.
• Demands for money are forbidden. Attorneys who send “demand letters” must also send the letter to the California Commission on Disabilities and the California State Bar, for review of compliance with the law. The letter may not make a demand or request for money, and may only state the potential for civil liability.
Finally, the best way to avoid being sued is to ensure that your facilities are in compliance with the ADA.
