Disability Access in California: Myths and Facts
California Disability Discrimination Attorney
We have been litigating disability access cases since 1996. There is no Disability Rights Firm in San Diego, California that has had a bigger impact on disability access law.
Myth: There are too many access lawsuits filed by people with disabilities.
Fact: There are few choices for people with disabilities attempting to enforce their right to equal access under the ADA other than filing a lawsuit. The ADA does not require states to have inspectors to enforce the law. People with disabilities must enforce their own rights without an enforcement mechanism and file a lawsuit as a last resort.
In fact, few Californians bring access lawsuits. According to the 2012 American Community Survey, there are approximately 3,766,370 Californians with disabilities. According to the most recent data available from the California Commission on Disability Access (CCDA), only 391 people with disabilities, or 0.01%, filed access claims in a one-year period.
Myth: Too many attorneys file frivolous lawsuits that raise minor problems, such as an inch-high mirror or a sign that is the incorrect blue shade.
Fact: Most complaints involve multiple access problems, not single minor infringements. Of the 201 cases filed in July 2014, only two raised a one-issue violation and most complaints recognized numerous violations or single important violations, such as missing grab bars. Furthermore, the State Bar of California has procedures to discipline attorneys who file frivolous lawsuits.
Myth: Small companies were harmed by letters of demand for cash.
Fact: Under these conditions, California law prevents people from filing request letters for cash. This law needs the California State Bar and the CCDA to oversee the letters of demand, and the California State Bar reviews all letters of demand to allow certain lawyers not to use them to claim monetary damages. The State Bar of California can discipline any attorney violating this prohibition.
Myth: Fixing access violations is expensive for small companies.
Fact: The most prevalent issues are cheap to solve and many can be fixed to the company owner at minimal costs, such as restriping or painting parking lots. Some can be solved at no price, simply by shifting a moveable barrier that blocks a wheelchair user’s route or stop using an accessible restroom toilet stall for storage.
Myth: It’s not fair that small companies in old buildings need to solve access issues.
Fact: It can be expensive to retrofit an old building with fresh norms, but present access requirements take into consideration such stuff as whether removing a barrier is feasible, whether the company has the funds to do so, and whether a building was constructed before the law was passed. The change requirement is produced on a case-by-case basis and takes these variables into account.
Federal and state law also provides tax credits and tax deductions for businesses that make access improvements. Tax credits can offset the costs of correcting accessibility violations and protect business profits.
Myth: Individuals claim violations of access, but they don’t even visit the company they are suing.
Fact: The plaintiff must demonstrate the breach personally affecting them in order to bring a California lawsuit against a company. This is needed by a state law adopted in 2008 which tightened somebody’s claims to bring a lawsuit of access against a company.
Myth: It is unfair to pay damages for each violation and each visit to an individual with a disability.
Fact: The law generally protects small companies from having to pay for various violation damages to a single person. Statutory damages are not permitted to accumulate at a single place based on multiple access issues. People with disabilities need to clarify why they required to make numerous visits to a site to obtain damages for repeated violations at one place.
Myth: The statutory damages are fixed and nothing can be done by a company to reduce them.
Fact: Companies can seek a decrease in the fines they have to pay by taking early proactive corrective action.
In 2012, changes to the law also reduced the amount of disability civil rights damages that a business has to pay. For example, if a business is proactive and hires a Certified Access Specialist (CASp) and fixes a violation within 60 days, the civil rights damages are reduced from a minimum $4000 to $1000 per offense. Damages are reduced from $4000 to $2000 per offense if a small business of 25 or fewer employees fixes the violation within 30 days.
Myth: Small businesses do not get an opportunity to fix minor “technical” violations before someone seeks damages.
Fact: State law gives small businesses of 25 or fewer employees 15 days to fix certain technical violations before having to pay a plaintiff who has not been hurt by the violation. Examples of technical violations include the order and placement of disabled parking signs, the wording on parking signs, and the color and condition of parking lot striping.
Myth: Businesses need more time to fix access violations.
Fact: California law gives 96% of California businesses time to fix the violations before having to pay damages if they get a CASp inspection. A business with up to 50 employees does not have to pay damages for up to 120 days for access violations they are correcting. If a building permit is required for repairs and the repairs cannot be completed within 120 days, the business gets up to 180 days to make repairs. To qualify for these damage protections, businesses must get a CASp inspection.
Myth: If a business was just told how to make their businesses accessible to people with disabilities – they would do it.
Fact: There are terrific resources available to help businesses make sure they are following the law. The CASp program, available to all businesses, is one such program.
The CASp program provides experienced, trained, and certified individuals who can inspect buildings for compliance with applicable state and federal construction-related accessibility standards. A list of CASp’s can be found here.
In addition, there are a number of other resources for businesses online, including the CCDA, the Pacific ADA Center, California Department of General Services Division of the State Architect, and the United States Department of Justice.
Speak with a California Disability Discrimination Attorney
If you have a question about your rights, please do not hesitate to ask. You have the right to force facilities to provide access as required by law and you are entitled to damages if the facility does not meet those requirements.
The Center for Disability Access will not charge you for its legal services provided unless your case is won.
Call (800) 383-7027 or email us to schedule a free, confidential consultation.