ADA Accessibility & CASp Consulting Services

The Americans with Disabilities Act of 1990 (ADA) is a federal civil rights law that prohibits discrimination of individuals with disabilities and requires all facilities used by the public (public accommodations) to be accessible to individuals with disabilities.

Since January 26, 1992, all new construction, additions and alterations are required to comply with the ADA standards. The ADA contains no “grandfathering” provisions. The “applicable construction-related accessibility standards” are based on the age of the facility and/or date of renovation(s):

• Facilities Built/Renovated Before January 26, 1992 Places of public accommodation constructed before this date are required to remove barriers if it is “readily achievable to do so” — a CASp can help make this determination.
• Facilities Built/Renovated Between January 26, 1992 and March 14, 2012 Places of public accommodation built during this time are required to be in compliance with the 1991 Americans with Disabilities Act Standards (1991 ADAS).
• Facilities Built/Renovated on or after March 15, 2012 Places of public accommodation and commercial facilities built after this time must be built in compliance with the 2010 Americans with Disabilities Act Standards (2010 ADAS).

In addition, accessible features are required to be maintained at your facility. Failure to come into compliance or maintain compliance leaves you vulnerable to having a discrimination claim filed against you by an individual that is denied access to your business or facility due to physical access barriers. (https://www.dgs.ca.gov/casp)

Businesses that provide goods or services to the public are called “public accommodations” in the ADA. The ADA establishes requirements for 12 categories of public accommodations, which include stores, restaurants, bars, service establishments, theaters, hotels, recreational facilities, private museums and schools, doctors’ and dentists’ offices, shopping malls, and other businesses. Nearly all types of businesses that serve the public are included in the 12 categories, regardless of the size of the business or the age of their buildings. Businesses covered by the ADA are required to modify their business policies and procedures when necessary to serve customers with disabilities and take steps to communicate effectively with customers with disabilities. The ADA also requires businesses to remove architectural barriers in existing buildings and make sure that newly built or altered facilities are constructed to be accessible to individuals with disabilities. “Grandfather provisions” often found in local building codes do not exempt businesses from their obligations under the ADA.

Commercial facilities, such as office buildings, factories, warehouses, or other facilities that do not provide goods or services directly to the public are only subject to the ADA’s requirements for new construction and alterations. (https://www.ada.gov/)

 

Either or both can be sued. The ADA places the legal obligation to remove barriers, provide auxiliary aids and services, and maintain compliance of accessible features at a place of public accommodation on both the landlord and the tenant. The landlord and the tenant may specify within the terms of the lease who is responsible for which areas of the facility, but both remain legally responsible.

Additionally, under California law, the landlord or commercial property owner is required to state on every lease form or rental agreement executed on or after January 1, 2017, whether or not the premises have been inspected by a CASp.  As of July 21, 2017, “commercial property,” in regards to disclosures of disability access, is defined as property that is offered for rent or lease to individuals operating, or intending to operate, a place of facility of public accommodation in which the general public is invited.

A person is denied full and equal access if the individual personally encountered the violation or the individual was deterred from accessing a place of public accommodation. A denial of full and equal access includes instances where a person experienced difficulty, discomfort, or embarrassment because of the violation.

If you are found liable, you will be responsible for paying the plaintiff’s attorneys fees in addition to statutory damages.

If you have failed to take action and be proactive with getting your property ADA assessed, then SB 1608 will not protect you. You lose the special legal benefits that SB1608 affords you, if your property as not been inspected by a CASp and received  a CASp report. You will be responsible for all legal costs for defending yourself, as well as any costs for settling a lawsuit.

This is where the CASp comes in. (See Questions about CASp)

More than 50 million Americans – 18% of our population – have disabilities, and each is a potential customer. People with disabilities are living more independently and participating more actively in their communities. They and their families want to patronize businesses that welcome customers with disabilities. In addition, approximately 71.5 million baby boomers will be over age 65 by the year 2030 and will be demanding products, services, and environments that meet their age-related physical needs. Studies show that once people with disabilities find a business where they can shop or get services in an accessible manner, they become repeat customers

Both the lessor and lessee are responsible and liable for the accessibility of a facility’s public areas. If you lease or rent a facility, it is advisable to have an agreement with your landlord about who is responsible for providing and maintaining the facility’s accessible features.

Lease and rental agreements must stipulate whether the property was inspected by a CASp, and, if so, whether or not the property is compliant with all applicable construction-related accessibility standards. (see questions about CASp)

To meet the goals of the ADA, the law established requirements for businesses of all sizes. These requirements went into effect on January 26, 1992. Businesses that serve the public must modify policies and practices that discriminate against people with disabilities; comply with accessible design standards when constructing or altering facilities; remove barriers in existing facilities where readily achievable; and provide auxiliary aids and services when needed to ensure effective communication with people who have hearing, vision, or speech impairments.

All businesses, even those that do not serve the public, must comply with accessible design standards when constructing or altering facilities.

A Certified Access Specialist (CASp) is a professional who has passed an examination and has been certified by the State of California to have specialized knowledge of the applicability of state and federal construction-related accessibility standards. A CASp will know which standards apply to your property based on the age of your facility and its history of improvements. While a licensed design professional, such as an architect or engineer, can provide you an access compliance evaluation of your facility, only a CASp can provide services that offer you “qualified defendant” status in a construction-related accessibility lawsuit. (https://casinstitute.org/)

California’s Construction Related Accessibility Standards Compliance Act (CRASCA, also referred to as SB1608) states that any business owner that hires a Certified Access Specialist (CASp) to perform an accessibility inspection of their facility is afforded certain protections in the California court system.  These protections are:

• A 90-day stay of any legal action against you and an Early Evaluation Conference.  Businesses must have had accessibility services performed by a CASp before any legal action is filed.
• Multiple damages may not be recovered at a single facility. CRASCA will help to ensure that damages may be claimed only when a plaintiff personally encountered a violation or was deterred from gaining access on a particular occasion. CRASCA clarifies that a denial of full and equal access constitutes one violation per distinct facility for purposes of damages. Damages may not be recovered for each and every single offense that may exist at the particular facility.

Hiring a CASp is voluntary, but being compliant is NOT.

 SB 1608 sets up a process whereby business owners can voluntarily hire a CASP to inspect their buildings to ensure compliance with disability access standards and obtain an inspection report as proof of inspection.

With a CASp inspection, completed according to CRASCA, you are considered a “qualified defendant”.  As a “qualified defendant” statutory damages may be reduced to a minimum of $1,000 for each occasion (visit) by the plaintiff if you can demonstrate that all construction-related violations that are the basis of a claim were corrected within 60 days of being served with the complaint.

In addition, qualifying small businesses that receive a CASp inspection, completed according to CRASCA, may opt for a 120-day grace period during which they are free from liability from statutory damages of those violations identified in the CASp report if they are corrected within this 120-day time period.

Without a CASp inspection, statutory damages of $4,000 may be assessed per occasion under Civil Code section 55.56; not $4,000 per each violation as previously allowed under the Unruh Act (Civil Code §52(a)).

A person is denied full and equal access if the individual personally encountered the violation or the individual was deterred from accessing a place of public accommodation. A denial of full and equal access includes instances where a person experienced difficulty, discomfort, or embarrassment because of the violation.

If you are found liable, you will be responsible for paying the plaintiff’s attorneys fees in addition to statutory damages.

Every day without being ADA Compliant, is another day that you leave yourself vulnerable to a potential ADA lawsuit.

Without a CASp you forfeit all of the benefits and protection that come with having your property ADA audited and getting a CASp report. An ADA lawsuit will be far more costly to you than a CASp ADA assessment.

A business owner who employs 50 or fewer employees over the past three years and opts to achieve compliance within 120 days from receiving a CASp inspection, completed according to CRASCA, receives a grace period from liability for statutory damages of violations identified in the report for 120 days from the date of inspection.  In order to receive the grace period, the CASp must deliver the inspection report to you within 30 days of the inspection and post access inspection notices at the facility the day of the inspection and also notify DSA that he/she has performed an inspection of the facility so that DSA can post such information on a list on its website. (www.dgs.ca.gov/).

Either or both can be sued. The ADA places the legal obligation to remove barriers, provide auxiliary aids and services, and maintain compliance of accessible features at a place of public accommodation on both the landlord and the tenant. The landlord and the tenant may specify within the terms of the lease who is responsible for which areas of the facility, but both remain legally responsible.

Additionally, under California law, the landlord or commercial property owner is required to state on every lease form or rental agreement executed on or after January 1, 2017, whether or not the premises have been inspected by a CASp.  As of July 21, 2017, “commercial property,” in regards to disclosures of disability access, is defined as property that is offered for rent or lease to individuals operating, or intending to operate, a place of facility of public accommodation in which the general public is invited.

You are encouraged to have all areas of your facility that are available to the public, included in the CASp inspection. Your “qualified defendant” status will not carry over to non-inspected public areas in which you receive a claim for a violation. You may ask your CASp for guidance on areas you are unsure of. The areas of your business used only for employees do not need to be inspected.

A CASp can provide to you a variety of accessibility services, including consultation and inspection of the public accommodation areas of your facility, and plan review of permit documentation. All CASps are required to provide you with a written agreement, which should specify the scope of work. Most importantly, if you are seeking the services that offer you “qualified defendant” status, then the agreement should, at a minimum, include the following information:

• Define the public accommodation area of your facility being inspected.
• State that a CASp inspection report prepared according to the Construction-Related Accessibility Standards Compliance Act (CRASCA, Civil Code §55.51-55.545) will be provided.
• State that a disability access inspection certificate will be provided.
• Include the CASp’s certification number and certification expiration date.
• Provide a place for both parties to sign the agreement. (https://www.dgs.ca.gov/casp)

A CASp inspection report prepared according to the Construction-Related Accessibility Standards Compliance Act (CRASCA, Civil Code §55.51-55.545) must have specific required content in order to offer a “qualified defendant” status. The report should state that the site either “meets applicable standards” or “inspected by a CASp.”

For a site that “meets applicable standards” the inspection report shall contain the following information:

1. An identification and description of the inspected structures and areas of the site.
2. A signed and dated statement that, in the opinion of the CASp, the inspected structures and areas of the site meet construction-related accessibility standards. The statement shall clearly indicate whether the determination of the CASp includes an assessment of “readily achievable barrier removal.”
3. If a determination of “meets applicable standards” was issued in a report after corrections were made as a result of a CASp inspection, then the report shall contain a signed and dated statement by the CASp that indicates such and includes an itemized list of all corrections and dates of completion.

For a site that is “inspected by a CASp” the inspection report shall contain the following information:

1. An identification and description of the inspected structures and areas of the site.
2. The date of the inspection.
3. A signed and dated statement that, in the opinion of the CASp, the inspected structures and areas of the site need correction to meet construction-related accessibility standards. The statement shall clearly indicate whether the determination of the CASp includes an assessment of “readily achievable barrier removal.”
4. An identification and description of the structures or areas of the site that need correction and the correction needed.
5. A schedule of completion for each of the corrections within a reasonable timeframe.

The CASp may request that a schedule for corrections be provided by you and submitted to the CASp for inclusion in the inspection report, depending on the nature and extent of improvements, or may work with you in establishing a reasonable schedule for correction of violations. A schedule of corrections is required, however, in order for you to have “qualified defendant” status. If you are a business owner that has employed 50 or fewer employees on average over the past three years, and you opt to correct within 120 days all violations that are listed in the CASp inspection report, the CASp may acknowledge in the report that you have opted for a 120-day schedule.

Along with your CASp inspection report you will receive from the CASp a disability access inspection certificate and a notice about the safekeeping of CASp inspection reports. It is important that you try your best to adhere to the reasonable schedule to demonstrate your desire to achieve compliance. If you adhere to your correction schedule and a claim is filed against you, you may be eligible for reduced liability for statutory damages. If you have opted to correct all violations listed in the report within the 120 days from the inspection, you are eligible for a grace period from liability for minimum statutory damages for the 120-day period if a claim is filed against you on those violations noted in your inspection report.

The ADA states that facilities constructed before January 26, 1992, must remove barriers to accessing goods and services that are “easily accomplishable and able to be carried out without much difficulty or expense.” This requirement is known as “readily achievable barrier removal.” If your facility pre-dates the enactment of the ADA and the public areas of your facility were not made accessible by a subsequent alteration, the ADA requires you to remove barriers that are readily achievable in all areas open to the public. An assessment of whether or not removal of barriers at a specific site is readily achievable is a detailed process that should take into consideration the following:

• Identification of barriers that prevent an individual from accessing goods and services at your business.
• The scope and cost of measures necessary to remove or mitigate the barriers.
• Careful examination of the overall financial resources of your business enterprise.

You may not want to release the above personal information to the CASp you hire, and many CASps may not be qualified to make such a thorough assessment of “readily achievable barrier removal”; therefore, a CASp may provide to you information on how a determination of “readily achievable barrier removal” is made in order for you to determine if an accessibility improvement is readily achievable. If you or your CASp determine that an accessibility improvement is not readily achievable, you will want to retain any documentation that substantiates this determination in your files, along with the CASp inspection report.

The disability access inspection certificate (Certificate) is a record of inspection, not a certificate of compliance. A CASp does not certify that a facility meets compliance with issuance of a Certificate. A Certificate is required to be issued to you with a CASp inspection report whether or not your facility is determined to meet applicable construction-related accessibility standards.

Business/facility owners should accept no other certificate offered by a CASp other than a Certificate purchased from the Division of the State Architect. Certificates are blue, sequentially numbered, and bear a golden State of California Seal. The Certificate number is recorded by the CASp in a record book maintained for that purpose and identifies that the certificate is issued in conjunction with a specific CASp inspection report.

You are not required to post the Certificate at the facility that was inspected, but you should have it readily available to offer it as proof that your facility has been inspected. If you do decide to post the Certificate, you may want to post a color copy and keep the original with the inspection report, as site conditions may cause the Certificate to fade or deteriorate. CASp inspection reports, however, should remain confidential and should only be disclosed after seeking the advice of an attorney.