With the new SB 269, certain businesses are incentivized to obtain a CASp inspection, through which they will be given further protections from access lawsuits and avoid certain statutory penalties under California law while any violations are fixed. If sued, SB 269 also provides for a 15-day “cure” period to fix certain technical violations.
LawyersandSettlements (LAS): Is Bill 269 a move in the right direction for victims?
Nathan Okelberry (NO): It does a good job of striking a balance with business and ADA, and increasing ADA awareness. At the same time, it is encouraging voluntary compliance with the Certified Access Specialists (CASp) program and deterring certain lawsuits involving technical violations that are easily fixed.
LAS: What is CASp?
NO: This state program certifies consultants that you can hire to inspect your property and you get a certificate to say your business complies with disability access standards, which provides some protection from ADA access lawsuits. If not, it will put you on a timeline to fix any ADA violations.
LAS: According to Courthouse News, The National Federation of Independent Businesses said it hopes SB 269 will minimize “shakedown lawsuits” and allow small businesses the chance to fix minor violations. How will it help businesses?
NO: The CASp program started in 2003. There have been attempts in the past to give it more teeth: this bill gives the business owner more protection. I think more business owners will have more interest in it. As for cost of certification, it depends on the property. Whatever the cost, it is typically cheaper than a lawsuit.
LAS: Will lawsuits against small businesses be harder to bring to court now?
NO: With CASp certification, yes. We will also see a reduction in drive-by lawsuits that are focused on “ticky-tack” violations often associated with parking spaces or exterior signage. At the same time, to avoid the 15-day cure period, you will likely start to see more lawsuits alleging additional violations other than those enumerated in the bill. In other words, other technical violations will likely also be added on to the drive-by complaints.
LAS: Such as?
NO: Say there are issues with a bathroom. Under the ADA, if the under-sink piping is exposed, it must be wrapped and insulated a certain way, but that is not a technical violation that is enumerated in SB 269, even though it is easily fixed.
The Senate Bill identifies several categories of violations, such as the wrong color of paint. And it states that, if a civil lawsuit is based on these violations, a business can fix them in 15 days. So people - and their attorneys - who file these shakedown lawsuits will be looking for more violations, sometimes more than a dozen issues.
LAS: Can you give an example of a shakedown lawsuit?
NO: Sometimes lawsuits are accompanied by photos. I recently had a client who was sued for allegedly not having a disabled parking spot at the shopping mall. The photo provided by the plaintiff’s attorney showed the spot, but the paint was a bit faded. When we pointed out that the photo actually showed that the parking space was compliant, he said, ‘Oops, our mistake.’ They decided to dismiss the lawsuit. My client is happy, but frustrated. I endeavor to keep defense costs low on these lawsuits, but they still had to deal with it and hire me to respond to their frivolous lawsuit.
LAS: The bill’s author, state Sen. Richard Roth, D-Riverside, called Brown’s signing a “major victory for all Californians.” Is there anything you would change with Senate Bill 269?
NO: The consensus amongst my clients and other attorneys seems to be that while the Bill is a step in the right direction, the Bill doesn’t go far enough in addressing lawsuits involving hyper-technical ADA violations. If you go through this CASp, you pay and get the certificate and get everything fixed, penalties should be completely eliminated.
Most of the provisions with this CASp apply only in state court, so if a lawsuit is filed in federal court, some of the protections given to business owners do not apply. I think they should eliminate statutory issues so lawsuits could be resolved easily and earlier.
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Attorney Nathan Okelberry focuses on representing employers against claims under state and federal labor and employment laws. His substantial litigation accomplishments include defense verdicts, multiple summary judgments in both state and federal court, and voluntary dismissals against his clients. Nathan also has extensive experience defending businesses - from start-ups to larger corporations - against disability access claims under the Americans with Disabilities Act (ADA) Title III and equivalent California public accommodation laws. His experience ranges from defending traditional construction-related access lawsuits to emerging disability access issues on the Internet.