ADA Defense

Professional ADA litigants in California are targeting small businesses. In fact, California businesses face the highest number of handicap accessibility lawsuits in the nation. Thankfully, there are a number of ways to defeat ADA claims and protect your business from future lawsuits. Speak with an attorney at our firm to discuss your specific case.

What is the ADA?

The ADA is the American with Disabilities Act. It is a set of laws and rules put in place at the federal level to protect the rights of our disabled citizens in the United States. These laws are meant to ensure that all people receive an equal opportunity to access places of public accommodation. Any business that opens its doors to the public must follow these rules. Failure to follow these rules may subject them to a lawsuit. These laws also extend to the state level in California, through what is called the Unruh Civil Rights Act. The Unruh act generally maintains the same parameters the ADA prescribes as to what it means to have equal access for public accommodations, but it allows for money damages pursuant to California Civil Code Section 52(a). This section states that a place of public accommodation denying access to a disabled person under Unruh may be liable for $4,000 in damages for each visit.

This is what serial Plaintiffs rely on to prey on the thousands of California businesses that have fallen out of compliance with the ADA and Unruh laws.

There are ways to defend against these lawsuits

Make no mistake, providing equal access to all is the right and legal thing to do. No business owner wants to prevent people from entering and enjoying their business. But there are attorneys and plaintiffs taking advantage of these laws for serious financial gain at the expense of the business owner. The State of California legislature has received a lot of pressure from business advocacy groups and local representatives to help mitigate the damages businesses face from these harassing lawsuits. As a result, a few changes were made to the California Code that can help reduce, and in some cases, avoid, liability in ADA lawsuits. For example, repairing the access defects in your small business within 30 days of being served will reduce potential damages from $4,000 to $2,000 per visit. Some limitations and exceptions apply. Also, there are a number of defects that business owners can fix within 15 days of being served that will completely remove the business’ liability. This only applies to minor features like repainting faded blue lines or putting up the proper signage. Again there are specific limitations and exceptions, so make sure to consult an attorney before attempting to remedy the situation on your own.

The problem with these damage reduction measures is that they are extremely time sensitive so a business needs to act fast! It is important that when a business is served with an ADA lawsuit, they respond quickly. Most businesses do not even realize they are not compliant and have no intention to violate these rules. Making swift repairs to your business is the best course of action and puts you in a favorable light with the court.

Inspections and Repairs

Many businesses attempt to remedy the defects in disability access but come short. They read the complaint served on them, find that the Plaintiff complains of an inaccessible parking space, a transaction counter, or a bathroom sink and make corrections accordingly. However, even if the Plaintiff’s complaint mentions a violation it may not be the only thing wrong with your business. The Plaintiff usually reserves the right in the complaint to find additional violations at a later date. So how do you combat this and ensure repairs are made right? The first step is to hire a Certified Access Specialist (CASp) to inspect your business. A CASp inspector is specially trained to identify the defects for disability access at your business. Once all repairs are made it’s important to bring the inspector back to verify repairs were made properly. Doing this ensures that you will never be sued again as long as you maintain it.

How can we help?

Tumer & Sharif has defended many small and medium-sized businesses all over Southern and Central California. We have handled a large number of these lawsuits and know how to defend them in both State and Federal Court. Every case is different and deserves a proper analysis before deciding on your strategy. In many instances, it is impossible to make repairs to the property or the property simply cannot offer a disability access feature. In other situations, quick and accurate repairs can lead to good results. Our team has the experience with ADA law to navigate your lawsuit with the best possible outcome. Our goal is to bring your out of a lawsuit with the lowest possible cost to you. Again, time is of the essence in these cases so act quickly, get the proper advice and make repairs to get the best opportunity to win.

 

Plaintiff Law Firms and Lawyers who file ADA Lawsuits California we have fought against

The Center for Disability Access, Potter Handy, Ascension Law Group, So. Cal. Equal Access Group, Law Offices of Ross Cornell, Manning Law Office, Disabled Advocacy Group, Scott Lynn J. Hubbard, David Wakefield, Dennis Price, Mark Potter, Raymond Ballister, Phyl Grace, Craig Cote, Joseph Manning.

Who’s to blame, the tenant or the landlord?

One of the first things we hear from our clients is they are not responsible for the alleged “barrier” on the property – it is the landlord’s or the tenant’s responsibility under the terms of the lease. This is always a difficult question to answer because the law is counter-intuitive about this situation.

In Botosan v. Paul McNally Realty, the Court addressed this question head on. In that case, Botosan, a wheelchair-bound person, claimed that he was denied access to a realtor’s office due to a lack of handicapped parking and sued both the landlord and the tenant under the ADA and Unruh Act. However, it turned out that the lease between the landlord and the tenant had allocated all responsibility for ADA compliance to the tenant. The landlords asked the Court to dismiss them from the case because it was not their responsibility. The Court ruled that it was their responsibility, at least as to Botosan. That didn’t mean that the landlord didn’t have a case against the tenants under the lease, but, as far as the disabled plaintiff was concerned, they were liable to him.

First, there is an exception to this rule. Tenants are not responsible for ADA compliance as to elements they have no control over. So, if the realtor was one of several tenants on the same property that shared a parking lot and had no control over the parking spaces, they could ask the Court to dismiss them. You can’t be held responsible for something you don’t have the power to change. But other than this one exception, both landlord and tenant have to see the case through to its conclusion and are jointly and severally liable for any amounts awarded by the Court.

That doesn’t mean the language of your lease is null and void, though. Either within the ADA suit itself or in a separate lawsuit, you can enforce the terms of the lease, including attorney’s fees and indemnification provisions. So, in the Botosan example, the landlord could get all of his expenses, possibly including attorney’s fees (depending on the specific wording in the lease), from the tenant. The only thing is that it would be a separate matter from whether the disabled plaintiff could recover from the landlord.

Generally speaking, turning a case from a two-way battle between the disabled plaintiff and the landlord/tenant into a three-way battle between all three ends up costing both the landlord and the tenant more. However, some landlords and some tenants are not cooperative, which can be an even bigger problem whose only solution is to start a new lawsuit to get the wayward defendant in line.