30 October 2023
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Many hotel owners already know they need to pay attention to Americans with Disabilities Act (ADA) compliance, both to provide a positive experience for guests and to avoid costly litigation. A proposed new California law, however, should bring their focus to website accessibility; if adopted, business owners, as well as their web developers, would be vulnerable to substantial statutory damages and attorney’s fee if sued by a plaintiff who succeeds in court.
JMBM’s ADA Compliance and Defense Team outlines the potential impact of this law, below.
New California Website Accessibility Bill
Would Expose Your Business to ADA and Unruh Act Liability
by Martin Orlick, Stuart Tubis, and Christopher Whang
JMBM’s ADA Compliance & Defense Group
Recently, the California Assembly quietly instituted a bill that would dramatically change the landscape of ADA website litigation. If you think the recent wave of ADA website lawsuits has been alarming, buckle up – because you haven’t seen anything yet.
The Assembly re-drafted an existing bill, AB1757, which if passed would include the adoption of the Web Content Accessibility Guidelines (“WCAG”) 2.1 into California’s disabled access law. AB1757 specifically would give plaintiffs the right to sue businesses if their website fails to meet those guidelines, which are not yet part of Federal accessibility law. Additionally and perhaps more alarming, if passed into law, the legislation would give ADA plaintiffs a direct claim to sue you and your web developers.
A plaintiff who prevails under AB1757 will be entitled to collect all damages, including but not limited to, statutory damages of $4,000 every time a person who is blind, low visioned or cognitively disabled visited your website or was deterred from visiting the website, as well as attorney’s fees resulting from the lawsuit.
To whom would AB1757 apply?
If passed, AB1757 would apply to all public businesses that own or operate a website for the sale of goods and services. AB1757 also would apply to “resource service providers,” or website developers, who operate, maintain, and/or build websites for public accommodations.
Protection for business owners
Traditionally, website developers have escaped liability in accessibility litigation. Not only does AB1757 provide individuals with disabilities the right to sue website owners, but it also allows for compensation for website accessibility issues directly from website developers. To our knowledge, this is the first time such a rule would be officially codified into law.
Anticipated major rise in litigation
AB1757 would encourage litigation, by granting every person and/or entity the right to sue a violator of the WCAG 2.1. Furthermore, if passed into law, AB1757 would provide little leeway for business owners and/or web developers to bring websites into WCAG 2.1 conformity. Many accessible websites may not conform specifically to WCAG 2.1 guidelines, as WCAG 2.1 is currently not official law. Not only will it take time to bring websites into full conformity, but we anticipate many business owners, website owners, and even web developers will not be aware of AB1757 until it is too late.
Current status of AB1757
Currently, the bill is in the amendment period of the Committee Hearing. During the Committee Hearing stage, the author presents the bill to the Committee and testimony can be heard in support of or opposition to the bill. The Committee then votes by passing the bill, passing the bill as amended, or defeating the bill. The bill can be amended several times.
During this stage, letters of support or opposition are important, and should be mailed to the author and Committee members before the bill is scheduled to be heard. As of now, the bill is set for a second hearing but without a specific date. Interested parties can send letters of support or opposition to Assembly Members Brian Maienschein (Chair), Matt Haney, Diane B. Dixon, Damon Connolly, Ash Kalra, Blanca Pacheco, Diane Papan, and Eloise Reyes.
As of August 21, 2023, California Assembly Bill (AB) 1757 was in committee. The bill’s second hearing was canceled at the request of the author. It is currently before the Senate Appropriations Committee.
You can find more information about the bill’s status here: http://legiscan.com/CA/bill/AB1757/2023#:~:text=Status&text=Action:%202023-08-21,at%20the%20request%20of%20author
JMBM’s ADA Compliance and Defense Group works with a broad spectrum of website owners and developers to help create sustainably compliant websites. We can help you avoid expensive litigation be working with you and your website developers to bring your websites and mobile apps into conformity with WCAG 2.1.
If you or your business have questions regarding your website’s conformity to WCAG 2.1 and how you can prepare for AB1757’s adoption, please feel free to reach out to either Martin H. Orlick at MOrlick@jmbm.com or 415.984.9667, Stuart K. Tubis at STubis@jmbm.com or 415.984.9622, or Christopher K. Whang at CWhang@jmbm.com or 415.984.9624.
Martin H. Orlick is one of the top ADA defense lawyers in the country. He has helped hotels, restaurants, retailers, banks and other commercial property owners defend more than 600 ADA cases. In addition to defending lawsuits and governmental investigations, Marty’s team of ADA specialists focuses on enterprise-wide ADA compliance and litigation prevention, including facilities, website and operational compliance.
Marty is the Chair of JMBM’s ADA Compliance & Defense Group, a Partner in JMBM’s Real Estate Group, and a member of the American College of Real Estate Lawyers (ACREL). For more information about ADA compliance and defense, contact Marty Orlick at 415.984.9667 or morlick@jmbm.com.
Stuart K. Tubis is a partner attorney at Jeffer Mangels Butler & Mitchell LLP and a member of JMBM’s ADA Compliance & Defense Group. Stu counsels businesses and landlords on the full spectrum of ADA compliance issues and represents their interests in litigation and Department of Justice investigations. He has a background in technology, which helps in resolving the growing area of website accessibility issues. Contact Stuart K. Tubis at 415.984.9622 or SKT@jmbm.com.
Christopher Whang is an associate representing clients in a wide range of litigation matters, particularly Americans with Disabilities Act claims. He has extensive experience in the full spectrum of litigation, including pre-lawsuit investigations, drafting pleadings, conducting discovery, taking and defending depositions, performing legal research, motion practice, and client interaction. Contact Christopher Whang at 415.984.9624 or CWhang@jmbm.com.
This is Jim Butler, author of www.HotelLawBlog.com and founding partner of JMBM and JMBM’s Global Hospitality Group®. We provide business and legal advice to hotel owners, developers, independent operators and investors. This advice covers critical hotel issues such as hotel purchase, sale, development, financing, franchise, management, ADA, and IP matters. We also have compelling experience in hotel litigation, union avoidance and union negotiations, and cybersecurity & data privacy.
JMBM’s Global Hospitality Group® has been involved in more than $125 billion of hotel transactions and more than 4,700 hotel properties located around the globe. Contact me at +1-310-201-3526 or jbutler@jmbm.com to discuss how we can help.