Pub. 1 2012 Issue 2

38 San Diego Dealer R eceiving an Americans with Disabilities Act Demand Letter is one legal problem that never fails to frustrate automotive dealers. The demands, which are based upon the California Unruh Civil Rights Act (Cal. Civ. § 51 et seq.), sometimes serve solely to enrich plaintiffs’ attorneys and their clients. Fortunately, the California legislature finally acted to amend the law to attempt to put a stop to frivolous claims. While the amendment is far from a perfect fix, it should provide business owners with some relief. The bill was signed into law on September 19, 2012 by Governor Brown. As an urgency statute, it goes into effect immediately. SB 1186 amends California law as follows: 1 It bans pre-litigation letters that demand money to settle claims. The plaintiffs’lawyers can still send letters notifying the business of the alleged violation but they cannot demand money. The letter must also specify the alleged violation and the date and time when it blocked the plaintiff’s access. Additionally, a copy of the letter must be sent to the State Bar and the California Commission on Disability Access. 2 It requires the plaintiff to verify, under the penalty of per- jury, that the claims in the complaint are true. Additionally, the complaint must specifically set forth the alleged ADA violation, how that violation harmed the plaintiff (by blocking his access) and when that harmoccurred. (This portion of the law does not go into effect until January 1, 2013.) 3 It weakens the statutory minimum penalty of $4,000. Prior to this amendment, a business could be liable for at least $4,000 for every single minor violation, which adds up cumulatively. Now, a business can avoid the full $4,000 penalty if it either (a) receives a Certified Access Specialist report, that certifies that the premises are ADA compliant and then repairs the violation within 60 days; or (b) a small busi- ness repairs the violation within 30 days. Unfortunately, the businessmay still be liable for any actual damages the plaintiff suffers as a result of the violation as well as attorneys’ fees. New Law Provides Your Store Some Relief From Frivolous Lawsuits BY SHANE MCCAL LAN, ASSOC I ATE AT TORNEY CAL LAHAN THOMPSON SHERMAN & CAUD I L L L LP 4 It requires judges to evaluate the reasonableness of “stacked claims.”Many ADA abusers would visit a business multiple times and then sue the business for each day they encountered the same violation in order to maximize dam- ages and force pre-lawsuit settlement. Now judges will be required to scrutinize whether the plaintiff acted reasonably. Perfect compliance is still extremely difficult because California has over 2,100 different ADA provisions governing access. However, the amended law does provide businesses with some tools they can use to protect themselves. You should consider having your attorney contact a Certified Access Specialist to have your business certified as compliant. The report would ordinarily be discoverable in litigation. Involving your attorney will ensure that it is protected by the attorney-client privilege. Certain changes may be difficult or expensive, especially if you have older facilities. In the event a change is prohibitively expensive, there may be ways in which you can minimize your liability. Two final notes. First, plaintiffs’ attorneys and activists have recently been targeting websites for non-compliance with the Americans with Disabilities Act. They claim that websites which have videos without an option for captions discriminate against the deaf. CTSC recently handled a case where a dealership was sued for a video on its website that was required by the manufacturer but did not have an option for captions. We managed to settle the case with no financial contribution on the part of the dealer. To best protect your business, you should consult with the company that provided you with the video content to see if you can get a captions option. Second, this October we received reports of ADA lawsuits being filed against San Diego dealers by a paraplegic plaintiff who claims that the dealership refused to install“hand controls”on a vehicle so that he could test drive it. The hand controls would allow the plaintiff to operate the accelerator and brakes by hand. These lawsuits are still in their nascent stages and liability is still being evaluated. If you receive one of these complaints, make sure to contact counsel immediately so you can work out a strategy for response. If you have any questions about SB 1186 please contact Callahan Thompson Sherman & Caudill LLP attorney Rick Ritchie at 619-232-5700 or by email at rritchie@ctsclaw.com .