Jury still out on whether bill will stymie access lawsuit abuse

Elizabeth B. Stallard, a partner in the Sacramento office of Downey Brand

Daily Journal (subscription required)

Jun 22, 2016

Over the past several years, faced with increasing public frustration over the extraordinary number of access lawsuits (often filed by a small group of serial plaintiffs and their serial counsel), efforts have been made to reduce these claims. The goal has been to deter claimants from filing claims and if they cannot be deterred, at least make it so they exact a smaller harm on the businesses they pursue. A topic often addressed as part of this conversation is the need for a grace period time for a business to correct access violations before damages may be recovered. Yet each time proposals intended to limit damages or provide grace periods have been brought to the state Legislature, the final legislation that resulted from the effort has been significantly less powerful than its initial incarnation.

For example, 2012's Senate Bill 1186, often considered to have made meaningful progress to address these issues, did reduce or eliminate damages for certain qualifying small businesses and businesses utilizing inspections by a certified access specialist. Unfortunately, in the years that followed it did not appear that these changes had a significant impact on the likelihood or likely outcome of access lawsuits. As a consequence, many felt that the Legislature still had not done enough.

Enter Senate Bill 269. SB 269 is a new incarnation of last year's SB 251, which was vetoed on the stated basis that it provided a tax credit for business owners who made accessibility improvements. SB 269 abandoned the tax credit, and made various other tweaks that proved enough to get it signed this time around.

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