By Lindsey Berg-James, Attorney
Noland, Hamerly, Etienne & Hoss
As Published in the Salinas Valley Business Journal, March 2023
and Coastal Grower magazine, Spring 2023
The Americans with Disabilities Act (ADA) prohibits disability-based discrimination by all places of public accommodation. Places of “public accommodation” generally refers to businesses and nonprofit organizations that are open to the public, including but not limited to retail stores, restaurants, hotels, recreational facilities, gas stations, and professional services businesses. A business can be deemed to have violated the ADA by failing to comply with the accessibility standards, such that persons with disabilities may have more difficulty accessing and patronizing a business than people without disabilities.
The ADA is a federal law that requires remediation of the ADA violation as well as payment of the plaintiff’s attorneys’ fees. The ADA does not require notice of an alleged violation prior to filing suit and often businesses do not realize they are in violation until they are sued. While businesses should aim for ADA compliance so they are accessible to all customers, another financial incentive to comply is California’s Unruh Act. The Unruh Act makes any violation of the ADA a violation of the Unruh Act, and subjects violating businesses to a minimum $4,000 penalty if a violation exists and a disabled person sues the business.
This provision of the Unruh Act has made California a hotspot for serial ADA plaintiffs who actively seek out non-compliant businesses to sue, some even traveling to California from out of state. Some high frequency litigants file hundreds of suits each year, and travel to different counties just to drum up more lawsuits. Provided these plaintiffs are correct and an ADA violation exists, which is often the case, the suits are not frivolous and the Unruh Act entitles them to compensation, plus their attorneys’ fees. The bulk of these serial plaintiffs are represented by the law firm Potter Handy, which files thousands of boilerplate ADA lawsuits primarily against mom and pop small businesses.
Monterey County has seen a massive upswing in recent ADA lawsuits in the last year as serial ADA plaintiffs are electing to sue in state court, rather than federal court. Local businesses should take steps to make sure they are ADA-compliant before a suit is filed. One way to do so is to hire a Certified Access Specialist (CASp), an individual certified by the State of California to inspect buildings and sites for compliance with the ADA’s accessibility standards. A CASp can inspect your business and advise regarding changes that need to be made to bring the business into compliance. If your business undergoes a CASp inspection it will receive special protection in the event an ADA plaintiff alleges they encountered a violation of the ADA, including a possible stay of the lawsuit and a penalty reduction in the event violations exist.
Don’t wait until you are sued before ensuring your business is ADA-complaint. Take affirmative steps now to make your business accessible to all customers, and to protect yourself from litigation.
This article is intended to address topics of general interest and should not be construed as legal advice.
© 2023 Noland, Hamerly, Etienne & Hoss