Disability Access Myths & Facts
August 27, 2015
Myth: Too many small business are sued over disability access.
Fact: California has approximately 3.3 million small businesses. The California Commission on Disability Access’ (CCDA) data reports that from January 2014 – January 2015 only 3,468 demand letters and complaints were filed. This means only 0.1% of businesses are sued about disability access.
Myth: Demand letters for money hurt small businesses.
Fact: This problem has been fixed by SB 1186 (2012 Steinberg). SB 1186 prohibits demand letters for money. It requires both the State Bar of California and the CCDA to provide oversight of demand letters. Today, there are very few demand letters. The State Bar of California is required to review demand letters to make certain attorneys don’t request damages. If they do the State Bar of California can discipline the attorney.
The CCDA collects data on all demand letters and complaints. From January 2014 to January 2015 they collected 3,468 demand letters and complaints. Out of the 3,468, there were only 250 demand letters or 7.2% of the total.
Myth: People with disabilities file too many access lawsuits.
Fact: The 2012 American Community Survey reports there are 3,766,370 Californians with disabilities. Only 391 people with disabilities or .01% filed access claims from January 2014 – January 2015.
Myth: Too many lawyers file frivolous lawsuits for things like a mirror being an inch too high or a sign being the wrong shade of blue.
Fact: According to the CCDA’s data, multiple access issues are identified in most complaints. For example, of the cases filed in July 2014, most complaints identified multiple violations or significant single violations, such as missing grab bars. Only 2 out of 201 complaints identified a single issue such as a soap or seat cover dispenser being too high.
The State Bar of California has procedures in place to deal with attorneys who file frivolous lawsuits.
Myth: It is unfair small businesses have to pay a person with a disability damages for each violation and each visit, plus attorney fees.
Fact: Damages cannot be accumulated through multiple visits or multiple access problems at a location.
Attorney fees are limited because businesses can receive a stay and early evaluation conference with a Certified Access Specialist (CASp) inspection and in some situations for small businesses without CASp inspections.
Myth: It isn’t fair that small businesses have to fix access problems in old buildings.
Fact: Current access standards takes into account such things as whether a building was built before the adoption of the law, whether removing a barrier is doable, and if the business has the resources to do so. The most common problems are inexpensive to fix; restriping or painting parking lots is not a costly fix.
Federal and state law provides tax credits and tax deductions for businesses that make access improvements. Tax credits can enable businesses to stay open.
Myth: Individuals claim access violations but do not visit the business they are suing.
Fact: SB 1608 (2008 Corbett) tightened standing requirements and requires the plaintiff to show the violation personally and actually deterred them from using the business.
Myth: If a business was just told how to make their businesses accessible to people with disabilities – they would do it.
Fact: Resources exist to help businesses identify what a person with a disability needs. The CASp program, available to all businesses, is one such program. The CASp program helps meet the need for experienced, trained, and certified individuals who can inspect buildings for compliance with applicable state and federal construction-related accessibility standards. In addition there are a number of other resources for businesses such as the CCDA (http://www.ccda.ca.gov/) and the Pacific ADA Center (http://www.adapacific.org/).
Common Sense Approaches to Improving Access and Minimizing Litigation
Californians with disabilities and business want access issues fixed. Some ways to ensure that happens are:
- Shift responsibility through lease terms for access fixes to landlords who have more resources to make properties accessible and prohibit landlords from shifting access fixes to tenants.
- Collect fees when business licenses are obtained or renewed to help pay for CASp inspections and access improvements.
- Develop an access inspection program similar to health and safety inspection programs.
- Require early review of actions filed by plaintiffs or lawyers who have filed 10 or more construction related lawsuits in a 12 month period.
- Ensure businesses correct the access problems by changing the law to require court oversight of settlements and court orders.
See the following link for a list of CASp: https://www.apps.dgs.ca.gov/casp/casp_certified_list.aspx. “Return to Main Document”
Endnote 1: http://www.gaebler.com/Number-of-Small-Businesss-in-California.htm).
Endnote 2: See the following link for a list of CASp: https://www.apps.dgs.ca.gov/casp/casp_certified_list.aspx.