Changes to California Law Protect Small Businesses From ADA Suits

On May 10, 2016, California Senate Bill 269 went into effect. This Bill changes the way damages are assessed in Americans with Disabilities Act cases in California. Proponents of ADA reform certainly wanted more sweeping changes, but the results are positive for small businesses nonetheless.

Under previous law, ADA plaintiffs in California could seek $4,000.00 per visit to a public accommodation where they encountered an ADA violation, without the need to prove actual damages. SB 269 changes this in three ways, by: (1) creating a rebuttable presumption that the $4,000.00 damage minimum is inapplicable in certain types of ADA cases; (2) eliminating the damage minimum for other types of ADA cases if the property was recently inspected by a California-licensed Certified Access Specialist (or “CASp”); and (3) reducing the damage minimum for still other kinds of ADA cases.

Under SB 269, an ADA plaintiff is not automatically entitled to the $4,000.00 damage minimum if the defendant is a small business (defined as a business with less that 25 employees and less than $3.5 million in gross receipts), the violation is fixed within 15 days after the complaint is served on the defendant, and the ADA violation has to do with one of the following: (1) the color or maintenance of the paint designating disabled-accessible parking spaces; (2) the presence or condition of certain detectable warnings for the sight-impaired; and (3) some signage issues. In these cases, to receive the $4,000.00 damage minimum, the plaintiff will have to prove that the ADA violation caused him or her “difficulty, discomfort, or embarrassment”.

A business can avoid the imposition of the $4,000.00 damage minimum entirely if it: (1) has fewer than 50 employees; (2) had the property inspected by a CASp within the previous 120 days; (3) did not have prior notice of the ADA violation; and (4) had all the violations listed in the CASp report fixed within 120 day.

Perhaps the most important provision of the new law provides that small businesses may reduce the damage minimum to $2,000.00 by simply fixing the ADA violation within 30 days after being served with the complaint. The damage minimum can be further reduced to $1,000.00 if the defendant fixes the ADA violation within 60 days after being served with the complaint in conjunction with any of the following: (1) the premises previously passed a CASp inspection and has not been modified since that time; (2) the premises previously underwent a CASp inspection and the business is in the process of reasonably correcting any ADA violations; or (3) the premises previously passed the inspection of a local building department and has not be modified since that time.

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