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California recently passed Senate Bill 269, a law that extends protections to small business owners, shielding them in some cases from penalties and fines arising from ADA violations.
Small businesses have generally let out a collective sigh of relief. But really, what are some of the effects of the new law? Fortunately, it all appears pretty simple.
The Basic Idea
The main focus of the law (and the class of persons intended for protection) is small businesses with fewer than 50 employees. The law grants small business that are in violation of public access rules -- as found by an access specialist -- 120 days to make the necessary changes without penalty. What's more, once the changes are made, the businesses will be protected from future claims in state court under a preclusion regime.
Signs and Stripes
Some minor ADA violations will have to be addressed by business owners sooner than 120 days, although they are generally much less onerous. Defective signage and stripes must be corrected within 15 days or penalties will be assessed.
Troll or Toll?
Public access to business by disabled persons is certainly a noble policy to pursue, and the Americans With Disabilities Act remains one of the country's landmark civil rights achievements. But some aggressive attorneys have been accused of using the ADA to create settlement mills.
News outlets have constantly covered serial-ADA filer Scott Johnson, for example. Johnson is (in)famous for his ADA litigation, leading some to accuse him of shaking down businesses.
This year, Johnson has filed about 80 ADA lawsuits. In some cases, even after the owners made the requested fixes demanded by Johnson, he'd still go after them for costly settlement fees because of legally backed minimum violation awards, and would also have the owners pay his attorneys' fees as well, the San Jose Mercury News reports. Essentially, he would have the condemned pay for their own rope.
In Johnson's case, some claim he's used the threat of heavy government penalties to leverage higher settlement demands. This has led to questioning about whether his motive was to grant greater access to disabled person and to benefit society. (Johnson, who is paralyzed from the waist down, would beg to differ.)
California's new law could put such a business model into jeopardy.
Small Business Counsel
All of this is welcome news to small businesses and their counsel. Just be aware that when an access specialist makes a determination of violation against your business, you'll need to get up to code quickly.