News for the Hospitality Executive |
Finally! Relief from Abusive ADA Litigation in California? Maybe not. . . |
By
Jim
Butler and the Global
Hospitality
Group® Hotel Lawyers | Authors of www.HotelLawBlog.com January 31, 2013 Hotel Lawyer talking about California's new law aimed at ADA litigation reform. ADA litigation
claims have skyrocketed. Since
January 2005, 16,530 ADA lawsuits -- lawsuits alleging violations of
the
Americans with Disabilities Act ("ADA") -- have been filed in federal
courts across the country. Even more have been filed in state courts.
In the article below, two senior members of our Global Hospitality Group® talk about a new law passed in California with the goal of reducing abusive ADA litigation. Parts of this law became effective in September 2012, and the rest of it became effective January 1, 2013. Marty Orlick, Chair of JMBM's ADA Compliance & Defense Group, and David Sudeck, hotel and timeshare lawyer, look at some of the key provisions of this new law and provide their observations about their impact. Marty and David frequently work together to advise hotel and timeshare owners and operators in connection with Federal and State accessibility law compliance. In this article, they bring California business owners some insight into the likely effectiveness a well-intentioned new law intended to curb abusive ADA litigation. Will California law changes discourage abusive
ADA
litigation? Since January
2005, 16,530 lawsuits alleging
violations of the Americans with Disabilities Act ("ADA") have been
filed in federal courts across the country. More of these lawsuits were
filed
in California than in any other state. Some believe that California is
a hotbed
of ADA litigation because California law awards damages and attorneys'
fees to
private plaintiffs for defendant's ADA violations -- treble damages,
with
minimum statutory damages of $4,000 (prior to the passing of this
Senate Bill),
and punitive damages. An unknown number of accessibility cases have
been filed
in California state courts, and countless more claims have been
threatened
against mostly small business owners.
Past efforts
to curtail ADA litigation abuse in
California have been marginally successful. Unfortunately, the latest
California legislation (SB 1186) may also provide limited relief from
abusive
ADA litigation. Key provisions of the new law became effective January
1, 2013.
California SB 1186, through comprehensive amendments to a number of
California
laws, including provisions of the California Civil Code (Sections 55.3
et
seq.), was intended to provide protection for the owners and operators
of
public accommodations who are making a good faith effort to comply with
the
ADA.
An overview of the main provisions of the new California law and our ADA Defense Lawyer observations "from the trenches" regarding the new law follows.
Overall evaluation
of California law changes SB 1186 did
not go as far as some wanted. Many
businesses were advocating a restriction on litigation until after a
potential
defendant had been given a reasonable time to correct alleged
violations (which
would have provided similar protections to those provided under other
legislation (SB 800), which helped to curb the abuse of construction
defect
litigation against condominium developers). However, SB 1186 did not
provide
this protection.
Experienced plaintiff's attorneys have already figured out how to work within the boundaries of or circumvent the new law. It does not appear to be slowing the onslaught of lawsuits. From our perspective, if and when the Court system is equipped to handle the additional burden imposed by SB 1186, the most important benefit of the new law may be the ability of a defendant to petition the state Court to stay proceedings and order an early evaluation conference before meaningful attorney's fees have been incurred. It is harder to come to a reasonable settlement when significant legal fees have been run up by both sides. Ultimately, the best protection is to secure a CASp certified survey under the supervision of an experienced ADA attorney and to correct any violations under the ADA that are identified in that survey (if and to the extent that such correction is required under applicable law). Other ADA defense
and compliance resources
This is Jim Butler,
author of www.HotelLawBlog.com
and hotel lawyer,
signing off. We've done more than $60 billion of hotel transactions and
have
developed innovative solutions to unlock value from hotels. Who's your
hotel
lawyer?
Martin
Orlick
is a partner in JMBM's Real Estate Department, the Chair of the Firm's
ADA
Compliance and Defense Group, and a senior member of JMBM's Global
Hospitality
Group®. Marty has significant experience in representing
hospitality industry clients
in enterprise wide ADA compliance and defense. He has represented more
than 500
businesses in ADA issues, many of them hotels and restaurants, as well
as hotel
mixed-use properties. In addition to defending lawsuits and
governmental
investigations, Marty's team of ADA specialists focuses on
enterprise-wide ADA
compliance including facilities, website and operational compliance. He
recently performed an ADA survey of a portfolio of Manhattan hotels.
Marty is a
member of the American College of Real Estate Lawyers (ACREL) and a
frequent
speaker on the ADA and other topics. For more information, please
contact Marty
Orlick at 415.984.9667 or [email protected]. David
Sudeck,
is a senior member of JMBM's Global Hospitality Group®. He helps
clients create
value for their hotels and other hospitality properties in the purchase
and
sale, development, construction, financing, leasing, sale-lease back,
and
operation of (including management and ADA compliance issues associated
with)
such properties. David's practice primarily involves the complex issues
associated with hotels, resorts, vacation ownership properties
(including
clubs, timeshares, fractionals and private residence clubs),
restaurants, golf
courses and spas. He represents several financial institutions and
private
equity funds as special counsel relating to their hospitality
interests. David
has a pragmatic approach to practicing law, and he adds value through
his
business experience and legal expertise, his finance, entitlement and
development knowledge, and his extensive relationships with investors,
lenders,
brokers, developers, and service providers. Contact David Sudeck
at 310.201.3518
or [email protected].
__________________________ Our Perspective. We
represent hotel lenders,
owners and investors. We have helped our clients find business and
legal
solutions for more than $60 billion of hotel transactions, involving
more than
1,300 properties all over the world. For more information, please
contact Jim
Butler at [email protected] or
+1
(310) 201-3526.
Jim Butler is a founding partner of JMBM, and Chairman of its Global Hospitality Group® and Chinese Investment Group™. Jim is one of the top hospitality attorneys in the world. GOOGLE "hotel lawyer" and you will see why. Jim and his team are more than "just" great hotel lawyers. They are also hospitality consultants and business advisors. They are deal makers. They can help find the right operator or capital provider. They know who to call and how to reach them. |
Contact: [email protected] 310.201.3526 |
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