A recent string of lawsuits have many local businesses again paying close attention to their own compliance with the Americans with Disabilities Act (“ADA”). One individual, along with the same attorney in each case, appears to be targeting restaurants and retail businesses across the Central Coast. The two individuals have filed a number of lawsuits alleging violations of the Act in SLO County and down south as far as Ventura. As you may know, under California law, any violation of the ADA is considered a civil rights violation and subject to a minimum statutory penalty of $4,000, plus attorney’s fees.
The threat of statutory penalties, even against well-intentioned property owners, can be used by professional litigants to seek monetary settlements from businesses for alleged (and admittedly often previously unknown actual) violations of ADA design standards. Businesses who have been the subject of such lawsuits often describe the process as feeling like a shakedown, where culpability and good intentions play no role. While this tactic may increase ADA compliance location by location, it can be very costly for the businesses involved and the businesses that are not currently being targeted are left to wonder if and when they will be next and whether they can ensure they are fully accessible to all of their customers and avoid a costly ADA lawsuit.
As the legislature considers revisions to the law to soften the harsh result of the current enforcement scheme (perhaps allowing time to repair, without penalty, after receiving notice of violation), there are a number of ways to ensure that your business is protected against such cases. And if you find that you need to make changes at your business to comply, there are often tax breaks and other financial incentives associated with those fixes.
Legislation signed into law in 2008 allows for Certified Access Specialists (CASp) to inspect facilities for access compliance, protecting business and property owners from unwarranted ADA lawsuits. A link to the list of approved CASp’s can be found below. If a Specialist deems the site to have any violations of the Act, the owner is given immediate protection against lawsuits within a set timeframe to correct the violations and establish intent to address the accessibility issues. Additionally, once cleared, there are provisions in the legislation that help reduce potential damages or stay litigation if specific steps are followed.
If a small business needs help paying for the inspection or for the costs of bringing the facility up to code, there are a number of tax credits and deductions available. The tax help ranges from $5,000 to $15,000 depending on the size and scope of the project and the range of time in which it will be completed. Links to further information and application forms are included below.
If you receive a demand letter regarding a violation, contact legal counsel with experience evaluating and handling such claims to determine how you can reduce or eliminate penalties and costs.
If you have any questions about getting your property in compliance to avoid this type of suit or incurring a large legal bill if a claim is made, please call our offices at (805) 546-8785 or email Brian Stack, a member of our business law team of attorneys at BStack@carnaclaw.com
Tax Credit Information: http://www.ada.gov/taxcred.htm
Tax Credit Applications: http://www.irs.gov/uac/Form-8826,-Disabled-Access-Credit-1