If you are a San Diego small business owner that has been served (or received notice) of a lawsuit alleging ADA violations, it is possible to obtain a stay (freeze) of court proceedings and an Early Evaluation before a judge. However, only qualified businesses can obtain these protections. And a business owner’s ability to qualify can be tightly time-limited depending on the circumstances. As a result, business owners lacking insurance or landlord coverage need to take action as soon as possible.

Read more for the types of circumstances that can let a small business obtain a valuable stay of proceedings and early evaluation.

By far the most straightforward avenue to obtaining a stay is completion of a Certified Access Specialist (CASp) inspection of the business. A court will issue a stay if there has been a CASp inspection, even if a report has not yet been generated. CASp inspections provide other valuable protections to small businesses as well that are beyond the scope of this post. Suffice it to say, any business that is open to the public and sees a high volume of foot traffic should have a regular practice of receiving CASp inspections. At the very minimum, it can provide a stay on ADA-related litigation.

Second, stays are available where businesses have had new construction completed after January 1, 2008 pursuant to local building permit and inspection processes. The reasoning behind this inspection is that new requirements for businesses were put in place in 2008 and a business is likely to be substantially in compliance if the construction was approved.

Third, stays are available for small businesses, with some important caveats: the business owner applying for the stay needs to provide proof of the number of employees as shown by wage report forms filed with the Employment Development Department, proof of the gross receipts of the business as shown by federal or state tax documents for the three years before the stay application or the life of the business, whichever is longer, and proof that the alleged violations have been corrected. It is very important to note that the time in which to correct a violation is limited and it may not be feasible to make the repairs if too much time elapses between when the complaint is served and when action to repair is taken.

Finally, courts will grant stays for a case filed by a high-frequency litigant, as that term is defined by Code of Civil Procedure section 425.55(b). It is worth noting that many if not most ADA cases filed in San Diego will fit into this exception, though whether the plaintiff is a “high-frequency” litigant will not always be clear from the face of the complaint.

Regardless of the strength of the businesses’ defenses, it will almost always make sense to get a stay of an ADA enforcement case. If you are a San Diego small business owner that is facing an ADA lawsuit, feel free to contact the Jake A. Walton Law Firm. We would be happy to speak with you.