By Mary M. Howell , Esq.

In 2012, the California legislature was incensed by unprovoked attacks on small commercial operations by drive-by “disability activists” who, after eye-balling the complex for ADA violations would sue, and then settle for attorney fees and a few dollars more…In response, the legislature enacted a defense for such businesses, Civil Code 55.3, 55.53.  .  In relevant part, these provisions required a potential plaintiff to give notice to the owner, before a suit is filed, of the owner’s rights and obligations under the disability protection laws.    The legislation further allowed the owner a chance to reduce damages by using the services of a “CAsp”, a California certified access specialist.  (A list of CAsp’s is found at www.apps2.dgs.ca.gov/dsa/casp/casp_certified_list.aspx)  The specialist could inspect the premises, prescribe changes to comply with the law, and if done within 30 days of any complaint, the owner could stay the action, and limit damages for each claim.  Civil Code 55.54.

SB 269 expands the defenses available to the property owner.  It lists certain technical violations (e.g., interior signage, lack of some types of exterior signage, such as location of accessible pathways, and the color and condition of parking lots and striping…) of the act and establishes a presumption that these violations do not result in damage to the plaintiff-disabled person.  The bill also protects small business (as defined) from statutory damages if changes are made during the 120 day period after the owner obtains an inspection of its premises by a CAsp.

The impact for associations?  Probably little for wholly residential associations which do not open their facilities to the public at large.  The ADA (and its state analog, Cal. Civil Code 54) do not, as a rule apply to residential associations, unless and until they open their facilities to the public.  But commercial associations need to be aware of these defenses, and most particularly, of the favorable effect of consulting with CAsp’s and taking regular, pre-litigation steps to assure that the premises comply with accessibility guidelines (as those owners have a continuing duty under the law to comply with current guidelines, including a duty to upgrade and improve premises.)

Sadly, the CAsp defense is not generally recognized in federal courts.  The 2012 enactment led to a virtual stampede headed in the direction of federal courts.   While the possibility of recognizing the defense continues to be debated at the federal trial court level, for the most part these statutes will protect against state law claims only.  Stay posted!