New State Law Focuses on Reducing Unwarranted, Unnecessary Public Access Litigation

Article authored by Porter Scott Attorneys

Senate Bill 1608 (“SB1608”), signed into law in September 2008, is good news for public accommodation providers. SB1608 is intended to combat abuse of disability laws. Specifically, the bill creates an independent disability commission to oversee three new changes in state ADA access law.

The California Commission on Disability Access (CCDA), created to address the lack of representation on state boards and commissions whose operation greatly impact disability access, will include members of both the business and disability communities. CCDA will study and make recommendations to the Legislature on whether (1) proper inspections are being made; (2) continuing education programs are sufficient to keep businesses apprised of current disability laws and (3) available disability law information is uniform and complete. Having the commission will help to facilitate the advancement of practical disability laws and encourage compliance among businesses. The CCDA should commence operations no later than May 1, 2009. Upon commencement, the following changes will go into effect.

First, continuing education will now be required for building officials and architects. Every three years, all construction inspectors, plan examiners, and building officials must complete a minimum of 45 hours of continuing education. Of the 45 hours, at least 8 hours must be devoted to disability access requirements imposed by the 1990 Americans with Disabilities Act and state laws that govern access to public facilities. This will ensure that architects are fully educated on disability access requirements and minimize the inadvertent approval of non-compliant projects.

Second, an attorney who sends a demand letter to a business or files a lawsuit against a business alleging disability access violations must now send notice to all defendants informing each of them of their legal rights and obligation to comply with state and federal disability access laws. This notice will not inhibit a plaintiff’s right to sue. It is merely another effort to reduce ADA litigation by informing the defendant of the steps he should take to comply with disability access laws. An unofficial notice form is currently available on the Judicial Council website, http://ww.courtinfo.ca.gov. On or before July 1, 2009, the Judicial Council will adopt an official notice form to be used by attorneys.

Third, SB1608 allows “qualified defendants” to request a limited stay and early settlement conference to help dispose of the case quickly and efficiently. Local agencies are now required to retain Certified Access Specialists (CASp) for the purpose of conducting inspections related to permitting, plan checks or new construction in privately owned buildings. Defendants are not required to hire a CASp; however, in order to be considered a “qualified defendant,” the public accommodation provider must have the public accommodation inspected by a CASp. As such, where (1) a construction-related accessibility claim has been filed; (2) the place of accommodation has the status of “CASp-inspected” or “CASp determination pending;” (3) a CASp inspection report has been completed and (4) defendant has received a copy of summons and complaint, the “qualified defendant” may file an application asking the court for a 90-day stay in proceedings and early evaluation conference to be held within 50 days of the request.

Additionally, SB 1608 places a higher burden on the Plaintiff to resolve the case quickly. At the early evaluation conference, a Plaintiff must now disclose (1) the amount of damages claimed; (2) the amount of attorney’s fees and costs incurred to date and (3) where applicable, a demand for settlement. Plaintiffs may no longer file a claim, sit back and wait.

This comprehensive legislation is intended to reduce the amount of ADA access claims. It is important to highlight, however, that the programs set forth in SB 1608 do not go into effect until CCDA has been funded and has commenced operations. Additionally, the changes only apply to construction-related accessibility claims filed on or after January 1, 2009.

State law ADA claims and federal law ADA claims are typically filed together in one suit in either federal or state court. Federal courts have the discretion to hear state law ADA claims. However, under 28 U.S.C.S. Section 1367(c) a federal court may decline to hear the state law claim in federal court if (1) the state law claim raises a novel or complex issue of state law; (2) the state law claim substantially predominates over the claim or claims over which the federal court has original jurisdiction; (3) the federal court has dismissed all claims over which it has original jurisdiction or (4) there are other exceptionally compelling reasons for declining jurisdiction.

Public access providers are encouraged to consult legal counsel for more information on SB 1608 and other ADA compliance issues.

The New ADA Amendments and What They Mean for California Employers

Article authored by Mike Pott and Colleen Howard

Effective January 1, 2009, the Americans with Disabilities Act (ADA) will provide a broader protection for disabled employees than has previously been provided under that statute. The legislation known as the ADA Amendments Act of 2008 (ADAAA) has a number of provisions – some of which were designed to reject the holdings of two Supreme Court decisions wherein the Court had narrowed the scope of the protections afforded to disabled persons. 110 Pub. L. 325, 122 Stat. 3553 (Sept. 25, 2008).

For example, the ADAAA specifically rejects the holding of Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and its companion cases which held that the whether an impairment substantially limits a major life activity is to be determined by considering the impact of mitigating measures. Under this principle, if a person can take medication to control an impairment, then the impairment does not substantially limit a major life activity. Under the ADAAA, other than considering the mitigating impact of glasses and/or contact lenses on an impairment, mitigating measures are not to be considered when determining whether a person has an impairment that substantially limits a major life activity.

The ADAAA also rejects the holding of Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), wherein the Supreme Court held that the definition of the ADA terms “substantially” and “major” need “to be interpreted strictly to create a demanding standard for qualifying as disabled.” The crux of this portion of the ADAAA is that the statute provides broad protection for persons with an impairment and that determining whether someone has a disability under the ADA should not require extensive analysis.

Other major amendments to the ADA of note include a larger list of what constitutes a “major life activity” than was included in the initial statute. Also, an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. The ADAAA also states that an individual is “regarded as” having an impairment if the person can show that he or she was subjected to an action prohibited under the statute because of an actual or perceived physical or mental impairment regardless of whether the impairment limits or is perceived to limit a major life activity. However, the “regarded as” definition does not apply to persons who have transitory or minor impairments. A transitory impairment is one that has an actual or expected duration of six months or less. Last, an employer does not need to provide a reasonable accommodation to an individual whose sole basis for meeting the definition of disability is that the person is “regarded as” having an impairment that substantially limits a major life activity.

What do these amendments mean for California employers? Not much. The resulting amendments provide broader coverage under the ADA, bringing its scope closer to the California Fair Employment and Housing Act (FEHA). However, the FEHA still provides broader protections than does the ADA so it is likely that we will continue to see employees and their attorneys rely upon the FEHA, rather than the ADA, as the basis for their requests for accommodation and lawsuits.

ADA Compliance Is Now In Cyberspace

Article authored by David Melton and Jared Mueller

Well, the Americans with Disabilities Act (ADA) has made its way into cyberspace. Target settled with the National Federation of the Blind for $6,000,000 and the payment of consultants to periodically monitor the website, in response to the United States District Court for the Northern District of California’s ruling that a class of blind plaintiffs had properly stated a claim under the ADA because of their inability to adequately access Target.com’s website. This leaves an incomprehensible number of website operators in doubt of their obligations under the ADA. Like their brick-and-mortar counterparts before them, is this just the first sign of an ADA lawsuit epidemic that will spread like wildfire throughout the Internet? Hopefully not.

For website operators without a physical location there does not appear to be reason to worry at this time. The ADA applies to discrimination against the disabled in places of “public accommodation.” Under Ninth Circuit law, a “place of public accommodation” is a physical space. See Weyer v. Twentieth Century Fox Film Corp. (9th Cir. 2000) 198 F.3d 1104, 1114. However, the Northern District Court held that a plaintiff may state a claim to the extent that the inaccessibility of a defendant’s website impedes the full and equal enjoyment of goods and services offered in the defendant’s physical location. National Federation of the Blind v. Target Corporation (2006) 452 F.Supp.2d 946, 956. It also held that, to the extent that the defendant’s website offers information and services unconnected to the defendant’s physical location, a plaintiff may not state a claim. Id. Target was held subject to the ADA because Target.com was found to be an extension of its stores, as part of its overall integrated merchandising efforts.

The Court explained, “The [Target.com] website is a means to gain access to the store and it is ironic that Target, through its merchandising efforts on the one hand, seeks to reach greater numbers of customers and enlarge its consumer-base, while on the other hand it seeks to escape the requirements of the ADA.” Id. at 956, fn 4. This statement is an illustration of the vast difference of perspectives between the business and judicial worlds. The Internet is an expanding universe that presents a wealth of opportunities for businesses with and without brick-and-mortar stores. Contrary to the Northern District Court’s belief, it is not that businesses are going there to escape the requirements of the ADA so much as that no business could imagine that the ADA requirements would ever apply there. Now, the court has extended the jurisdiction of the ever-expanding ADA to the ever-expanding Internet.

In Sacramento, multiple ADA lawsuits are filed on an almost daily basis due to inadequate physical facilities. One such lawsuit resulted in the controversial closure of Basketball Town, a recreational facility for local youth. For ADA attorneys, these violations are easy to find and the lawsuits are easy to file. Although compliance with federal law is a positive end, the means of litigation has proven costly to local businesses.

Businesses with websites that may be subject to the ADA should consider implementing technology that is compatible with screen reader software. The screen reader software vocalizes the website’s text and describes the content. Also, if the screen reader can read the navigation links, a blind individual can navigate the site with a keyboard instead of a mouse. The National Federation of the Blind offers a certification for compliant websites. After all, as evidenced by the Target settlement, failure to comply with ADA requirements can be costly for a business’s bottom line.

ADA Update: DOJ To Make Jails Subject to Accessible Design Guidelines

Article authored by Stephen E. Horan and Kevin M. Kreutz

Starting March 2012, public entities must design, construct and renovate their jail facilities to comply with the design standards set forth in the Americans With Disabilities Act.  This requirement is one of many changes in store for federal civil rights disabilities litigation, as the U.S. Department of Justice recently revised federal regulations implementing the ADA.  Unlike other revisions, which are largely technical in nature, the DOJ’s declaration that jails must comply with the ADA’s technical guidelines may help end decades of confusion over what “programmatic access” means for the incarcerated.

Enacted in 1991, Title II of the ADA applies to public entities.  Title II states that public entities must “operate each service, program, and activity so that the service, program, or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities.”  Federal courts have interpreted this standard to apply to any service a public entity provides, including jail or correctional services.
Though it has been clear that Title II applies to correctional services, it has remained unclear whether Title II’s implementing regulations – the American With Disabilities Act Accessibility Guidelines, or ADAAG – required public entities to design, build or renovate correctional facilities in a particular manner.  Some courts have held correctional facilities to these standards despite language in prior DOJ publications suggesting the ADAAG do not apply to jails.  The result has been sparse and inconsistent case law among the federal circuits.

The DOJ clarified ADAAG’s scope during the summer/fall of 2010, when Attorney General Eric Holder signed final regulations revising ADAAG.  These new regulations will become known as the 2010 ADA Standards for Accessible Design (“2010 Standards”).
In its explanation of the 2010 Standards, the DOJ states “[t]he 1991 Standards did not contain specific accessibility standards applicable to cells in correctional facilities.”  The 2010 Standards set forth “specific requirements for the design and construction and alterations of cells in correctional facilities for the first time.”

The 2010 ADAAG’s general requirement is that three percent of newly constructed or altered cells must comply with the specific building requirements set forth in the 2010 Standards.  However, recognizing that detention facilities are unique, and often very expensive to retrofit, the 2010 Standards permit public entities to comply with the new requirements through substitute accessible cells.  These cells may be located at the same facility being constructed or altered, or may be located at an entirely different facility, subject to certain requirements.

In sum, the 2010 Standards seem to end the confusion over whether public entities must comply with the 1991 ADAAG, and perhaps more importantly, whether public entities may be liable for violations of the 1991 ADAAG.  The 2010 Standards appear to answer both questions in the negative.  Nevertheless, by March 2012, public entities will have an affirmative duty to comply with the 2010 Standards.  Accordingly, public entities should be familiar with the details of these new standards before then.  Please contact us if you have any questions or need help understanding how the 2010 ADAAG apply to jails and what they require by the March 2012 deadline.