New State Law Focuses on Reducing Unwarranted, Unnecessary Public Access Litigation

by: Porter Scott Attorneys

Senate Bill 1608 (“SB1608”), signed into law in September 2008, is good news for public accommodation providers. SB1608 is intended to combat abuse of disability laws. Specifically, the bill creates an independent disability commission to oversee three new changes in state ADA access law.

The California Commission on Disability Access (CCDA), created to address the lack of representation on state boards and commissions whose operation greatly impact disability access, will include members of both the business and disability communities. CCDA will study and make recommendations to the Legislature on whether (1) proper inspections are being made; (2) continuing education programs are sufficient to keep businesses apprised of current disability laws and (3) available disability law information is uniform and complete. Having the commission will help to facilitate the advancement of practical disability laws and encourage compliance among businesses. The CCDA should commence operations no later than May 1, 2009. Upon commencement, the following changes will go into effect.

First, continuing education will now be required for building officials and architects. Every three years, all construction inspectors, plan examiners, and building officials must complete a minimum of 45 hours of continuing education. Of the 45 hours, at least 8 hours must be devoted to disability access requirements imposed by the 1990 Americans with Disabilities Act and state laws that govern access to public facilities. This will ensure that architects are fully educated on disability access requirements and minimize the inadvertent approval of non-compliant projects.

Second, an attorney who sends a demand letter to a business or files a lawsuit against a business alleging disability access violations must now send notice to all defendants informing each of them of their legal rights and obligation to comply with state and federal disability access laws. This notice will not inhibit a plaintiff’s right to sue. It is merely another effort to reduce ADA litigation by informing the defendant of the steps he should take to comply with disability access laws. An unofficial notice form is currently available on the Judicial Council website, http://ww.courtinfo.ca.gov. On or before July 1, 2009, the Judicial Council will adopt an official notice form to be used by attorneys.

Third, SB1608 allows “qualified defendants” to request a limited stay and early settlement conference to help dispose of the case quickly and efficiently. Local agencies are now required to retain Certified Access Specialists (CASp) for the purpose of conducting inspections related to permitting, plan checks or new construction in privately owned buildings. Defendants are not required to hire a CASp; however, in order to be considered a “qualified defendant,” the public accommodation provider must have the public accommodation inspected by a CASp. As such, where (1) a construction-related accessibility claim has been filed; (2) the place of accommodation has the status of “CASp-inspected” or “CASp determination pending;” (3) a CASp inspection report has been completed and (4) defendant has received a copy of summons and complaint, the “qualified defendant” may file an application asking the court for a 90-day stay in proceedings and early evaluation conference to be held within 50 days of the request.

Additionally, SB 1608 places a higher burden on the Plaintiff to resolve the case quickly. At the early evaluation conference, a Plaintiff must now disclose (1) the amount of damages claimed; (2) the amount of attorney’s fees and costs incurred to date and (3) where applicable, a demand for settlement. Plaintiffs may no longer file a claim, sit back and wait.

This comprehensive legislation is intended to reduce the amount of ADA access claims. It is important to highlight, however, that the programs set forth in SB 1608 do not go into effect until CCDA has been funded and has commenced operations. Additionally, the changes only apply to construction-related accessibility claims filed on or after January 1, 2009.

State law ADA claims and federal law ADA claims are typically filed together in one suit in either federal or state court. Federal courts have the discretion to hear state law ADA claims. However, under 28 U.S.C.S. Section 1367(c) a federal court may decline to hear the state law claim in federal court if (1) the state law claim raises a novel or complex issue of state law; (2) the state law claim substantially predominates over the claim or claims over which the federal court has original jurisdiction; (3) the federal court has dismissed all claims over which it has original jurisdiction or (4) there are other exceptionally compelling reasons for declining jurisdiction.

Public access providers are encouraged to consult legal counsel for more information on SB 1608 and other ADA compliance issues.