Assembly Republican Leader Kristin Olsen and ADA Reform

Lawmakers address predatory lawsuits stemming from new legislation

Back Web Only Mar 5, 2015 By Rich Ehisen

Almost three decades after the implementation of the federal Americans with Disabilities Act, many California companies are still finding themselves embroiled in lawsuits or out of business altogether over alleged ADA violations.

With that in mind, Assembly Republican Leader Kristin Olsen has made ADA reform a pillar of her legislative agenda. Olsen, who represents Modesto, is one of three Central Valley lawmakers this session to file bills aimed at curbing predatory ADA lawsuits. Her proposal, Assembly Bill 54, would give small businesses 60 days to cure an alleged violation if it is related to a construction standard that changed in the past three years.

“One of the big challenges for any small business is keeping up with all the new laws and regulations because they change so quickly and there are so many of them, particularly with the ADA,” Olsen says. “They may not even know they are in violation.”

It’s not hard to understand why. There are over 2,500 ADA-related building requirements currently on the books, making it a significant challenge for many businesses to keep up. The law has also created a cottage industry for lawyers and others who use it to effectively shake down an allegedly noncompliant business by demanding money in exchange for not filing a lawsuit. Even if an accusation is unjustified, many small businesses pay up anyway because it is cheaper than the legal fees necessary to defend themselves in court. Other business owners without the cash to either make expensive building upgrades or pay off litigious attorneys simply close their doors for good.

To combat that, California lawmakers have enacted a handful of reforms over the years to discourage such predatory litigation. The last came a few years ago when Gov. Jerry Brown signed a bill barring lawyers who send businesses “pay or litigate” letters from demanding a specific dollar figure. Results have been decidedly mixed: preemptive payment demand letters are down, but actual lawsuits are way up.

Other bills on the docket already this year include AB 52 from Assemblymember Adam Gray, a Merced Democrat, which would limit statutory damages in an ADA case to no more than $1,000 per violation as long as the business owner corrects any problems within 180 days of being cited. Another, Senate Bill 67, put forth by Kathleen Galgiani, a Democrat whose district includes Stockton, Tracy and Modesto, would require ADA litigants to show proof they have suffered some harm from an alleged violation. Any judgment for damages would be based solely on the level of actual harm. Businesses would also see the time they have to fix a violation double from the current 60 days to 120 days.

In a statement, Galgiani voiced a sentiment many business owners share.

“The original intent of the ADA was a good one — to ensure businesses provide accommodations to their customers who have disabilities,” she said. “The law was not designed to be a get-rich-quick scheme for predatory lawyers.”

Olsen echoes her sentiments.

“My overarching goal is to protect small businesses from these predatory lawsuits that are wreaking havoc on small businesses in every corner of California,” she says. “What we really need is federal reform, and I’m working with our colleagues from both parties in Congress to do that as well.”

 

Read Rich Ehisen’s full interview with Assembly Republican Leader Kristin Olsen in our March issue. Or sign up for our newsletter, and we’ll email you when it’s available online. 

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