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California Enacts New Disability Access Legislation

A landmark disability access bill aimed at decreasing unwarranted disability-access litigation that does not advance disability access and increasing equal access for individuals with disabilities has been approved by California Governor Arnold Schwarzenegger. The legislation, S.B. 1608, adds new provisions to the state’s existing disability access laws which are likely to benefit employers and landlords. The law goes into effect January 1, 2009, with some provisions delayed until July 1, 2009.

Conflicting access standards under California and federal laws, a lack of continuing education for building inspectors and architects, and inconsistent interpretations of state law have made compliance with disability-access standards in California difficult. The business community long has complained of disability-access lawsuits filed by plaintiffs more interested in monetary gain than in promoting access for individuals with disabilities. Provisions in the new law address this problem directly by providing damages to plaintiffs only for a violation of their personally encountered denial of access and by offering early court evaluation of the claims’ merits. Plaintiffs will no longer be able to profit by merely filing lawsuits against establishments they do not intend to use.

Among other things, the new legislation:

• Establishes a 19-member California Commission on Disability Access. The independent commission will conduct studies and make reports to the Legislature on disability access throughout the state.
• Requires a court to issue an order that grants a 90-day stay, schedules an early evaluation conference, and directs the defendant to file with the court any relevant certified access specialist inspection report if the defendant has satisfied certain requirement relating to inspection of the site at issue.
• Requires a plaintiff’s attorney to provide a written advisory to a building owner or tenant with each demand for money or complaint for any construction-related accessibility claim, as defined in the law, in a form to be developed by the Judicial Council. The advisory form must explain the right to a court stay and early evaluation conference to assess the merits of the claim. The form should be available on or before July 1, 2009.
• Requires, for the first time, persons licensed to practice architecture to complete eight hours of coursework every three years regarding disability access requirements.
• Enacts the Construction-Related Accessibility Standards Compliance Act to provide for the inspection of sites by certified access specialists. Under existing law, the State Architect is authorized to implement a program for voluntary certification of any person who meets the specified criteria as a certified access specialist.

The new law is good news for employers in California, who have had to defend against lawsuits, sometimes viewed as oppressive and commenced principally for the benefit of the plaintiffs’ counsel, without improving access for individuals with disabilities. The president of San Diego Citizens Against Lawsuit Abuse, Lorie Zapf, reportedly said when the legislation was signed, “Someone won’t be able to just go in and look around for a laundry list of violations and say, ‘Hey, if you pay me a couple of thousand dollars, I’ll go away.’”

The new law also serves as a reminder that employers should evaluate their businesses regularly to ensure they are in compliance with access requirements and other aspects of disability discrimination laws. Jackson Lewis attorneys are available to answer your inquiries about this new law and other workplace legal requirements.

Related Links
California S.B. 1608