ADA Problem-Solving starts here
ADA : Getting it Straight... Helps you get it Right!
ADA is directed to businesses, not just property owners. Nearly all ADA lawsuits are filed against both the operating business owner (tenant) and the property owner (landlord).
The following questions are taken from a variety of authoritative sources, including Government Websites. The goal is to cover as many of the potential questions that business owners, tenants, managers etc. may need to have answered. Of course, this is no substitute for getting professional advice directly from a CASp Expert.
ADA Requirements for Places of Public Service (Title III)
Division of State Architects (DSA)
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)
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.
It is the intent of the California Legislature that the building standards published in the California Building Standards Code (Title 24) relating to accessibility by people with disabilities shall be used as minimum requirements to ensure that buildings, structures, and related facilities are accessible to, and functional for, every member of the public, so as to provide equal opportunity to access public accommodations. Access is to be provided to, through, and within the buildings, without loss of function, space, or facility where the general public is concerned.
The regulations in California were developed by the Division of the State Architect, Access Compliance, eight years before the United States Congress passed the ADA. The current California Building Standards Code was written to provide a single code which would meet all of the most stringent requirements of the original California Building Standards Code, as well as the 1991 Federal Fair Housing Amendments Act and the Americans with Disabilities Act Accessibility Guidelines.
The “building official” is the officer or other designated authority charged with the administration and enforcement of this code, or the building official’s duly authorized representative in accordance with state law. Local cities and counties have building officials who regulate construction in their jurisdiction. State funded construction on state property is often regulated by a state agency, such as the Division of the State Architect. Sometimes public construction has more than one building official — each has separate jurisdictional oversight responsibilities.
The California Building Standards Code says that you must get a final determination from the local building official that your project has an unreasonable hardship. This is rarely granted for new construction. Existing buildings undergoing alteration are sometimes allowed to depart from the literal requirements of the building code only when equivalent facilitation is provided.
Accessibility is required to all covered multifamily dwellings on the lowest floor in buildings without elevators. Certain exceptions apply to multistory units, or smaller buildings such as single or duplex units. In covered multifamily dwellings in buildings with elevators, all units are required to be located on an accessible route. Within the units, the requirements are for accessibility are allowed to be for adaptable dwelling units.
“Covered multifamily dwellings” are all dwelling units in buildings consisting of three or more privately funded dwelling units if such buildings have one or more elevators; and all ground floor dwelling units in other buildings consisting of three or more dwelling units.
No, as long as the first dwelling level floor above grade is accessible. Some buildings have parking on the lower floor, and a ramp, wheelchair lift or elevator will be required to provide access to the lowest dwelling level floor above the parking.
An “adaptable dwelling unit” is a dwelling unit in a building with a building entrance on an accessible route designed in such a manner that the public and common use areas are readily accessible to and usable by a person with a disability, and all doors are designed sufficiently wide to allow passage into and within all premises by persons who use wheelchairs as required by the building code.
Accessibility to buildings or portions of buildings shall be provided for all occupancy classifications except as specifically modified by the building code. Individual occupancy requirements in the code may modify the general requirements for accessibility, but never to the exclusion of them entirely — unless the requirements for an individual occupancy specifically overrides a general requirement. Multistory buildings must provide access by ramp or elevator, with elevator exceptions available for some buildings. Generally, two story office buildings are not required to have elevators, although all other accessible features are still required on upper floors.
Construction law is quite difficult, and takes experienced professional expertise. The Division of the State Architect functions as a building oversight agency on state-funded construction projects, and can only direct you to general resources at your local building department. If DSA is the jurisdictional authority, our “California Access Compliance Reference Manual” has all of the building code accessibility regulations and policies used on projects under DSA approval authority. The Manual is available as a free download as an Adobe Acrobat (PDF) file. The Manual is also available in hardcopy at technical bookstores throughout California.
The following types of privately funded multistory buildings do not require a ramp or elevator above and below the first floor:
Multistoried office buildings (other than the professional office of a health care provider) and passenger vehicle service stations less than three stories high or less than 3,000 square feet (279 m2 ) per story.
Any other privately funded multistoried building that is not a shopping center, shopping mall, or the professional office of a health care provider, and that is less than three stories high or less than 3,000 square feet (279 m2 ) per story if a reasonable portion of all facilities and accommodations normally sought and used by the public in such a building are accessible to and usable by persons with disabilities.
“Accessibility” is the combination of various elements in a building or area which allows access, circulation, and the full use of the building and facilities by persons with disabilities.
“Universal design” is a broader, more comprehensive “design-for-all” approach to the development of architecture around human diversity. It recognizes the changing diversity of needs important to all types of people regardless of their varying age, ability, or condition, during an entire life. By comparison, “accessibility” has traditionally focused on addressing the needs of a few people with separate circumstances from those of the public at large, when in fact almost everyone is, over the course of their lifetime, quite able to benefit from barrier-free design, user-friendly architecture, and comfortable environments.
Equivalent facilitation” is an alternate means of complying with the literal requirements of these standards and specifications that provides access in terms of the purpose of these standards and specifications. In determining equivalent facilitation, consideration shall be given to means that provide for the maximum independence of persons with disabilities while presenting the least risk of harm, injury, or other hazard to such persons or others.
No, because DSA is a separate jurisdiction. By law, only the local building authority can make a final determination as to code enforcement issues.
On state funded projects under DSA jurisdiction, DSA approves projects that provide a lower transaction counter which is minimally 36 inches in width and no more than 34 inches high above the finished floor. If your project is under a local jurisdiction, check with the local building official to see if the same enforcement policy is utilized.
Accessible seating or accommodations in places of public amusement and resort, including theaters, concert halls and stadiums, but not including hotels and motels, shall be provided in a variety of locations so as to provide persons with disabilities a choice of admission prices otherwise available to members of the general public. When there are over 300 seats, dispersal is required, and when there are less, no dispersal is clearly indicated in the code. However, some trial courts have found that lack of dispersal creates a highlighted area — generally considered discriminatory. The building code does mention this, and further changes in the code to clarify this is quite likely.
Yes, the following areas are required to be accessible:
- Major or principal floor areas shall be made accessible.
- Office areas shall be made accessible.
- Sanitary facilities serving these areas shall be made accessible.
The California Labor Code requires separate facilities whenever there are more than four employees. Where separate facilities are provided for nondisabled persons of each sex, separate facilities shall be provided for persons with disabilities of each sex also. Where unisex facilities are provided for persons without disabilities, at least one unisex facility shall be provided for persons with disabilities within close proximity to the non-accessible facility.
Hotels, motels, inns, dormitories, resorts, and similar places of transient lodging shall provide access for persons with disabilities in accordance with the provisions of the accessibility requirements of this California Building Code. Accessible guest rooms or suites shall be dispersed among the various classes of sleeping accommodations to provide a range of options applicable to room sizes, costs, amenities provided, and the number of beds provided.
When a building, or portion of a building, is required to be accessible or adaptable, an accessible route of travel shall be provided to all portions of the building, to accessible building entrances and between the building and the public way. Except within an individual dwelling unit, an accessible route of travel shall not pass though kitchens, storage rooms, restrooms, closets or other spaces used for similar purposes.
At least one accessible route within the boundary of the site shall be provided from public transportation stops, accessible parking and accessible passenger loading zones, and public streets or sidewalks, to the accessible building entrance they serve. The accessible route shall, to the maximum extent feasible, coincide with the route for the general public. At least one accessible route shall connect accessible buildings, facilities, elements and spaces that are on the same site.
At least one accessible route shall connect accessible building or facility entrances with all accessible spaces and elements and with all accessible dwelling units within the building or facility. An accessible route shall connect at least one accessible entrance of each accessible dwelling unit with those exterior and interior spaces and facilities that serve the accessible dwelling unit.
ADA Myths, Misconceptions, Excuses
There are no “grandfathering” provisions. “Grandfathering” is the notion that the Americans with Disabilities Act (ADA) and state law access requirements do not apply to buildings constructed prior to the effective date of these statutes. This, however, is not true. Regardless of the age or historical importance of a building, if it is open to the public, you must provide access to your goods and services in order for your facility to be considered compliant. If your facility was built or had any alterations made to it since January 26, 1992 (under the ADA) or was built or had any alterations made to it since 1970 (under California law), there are obligations to remove barriers at the time of that building or alteration.
An alteration is defined as almost any construction, repairs or renovation that affects or could affect the usability of the building or facility or any part of it; it includes tenant remodels. There are some exceptions, such as purely cosmetic changes like paint and carpet replacement. If an alteration is made, then barriers must be removed in the path of travel and restrooms serving the area of alteration, as well as the area of alteration itself.
Even if your building has had no alterations, the ADA requires that an owner or operator of a public accommodation make changes that are “readily achievable” in order to improve access to goods and services. This is an ongoing obligation, meaning you are required to periodically evaluate the barriers in your facility that are not “readily achievable” to determine if barrier removal can be accomplished in the future and to plan for the time when barrier removal can be achieved.
Even if no physical changes are readily achievable, you must establish a modification of your policies and procedures or some other alternate means of providing access to the greatest extent possible.
If you cannot determine what barrier removal obligations you have, or whether creating more accessible environments is readily achievable, you should hire a Certified Access Specialists (CASp) or other expert.
Unfortunately, even with building department oversight, it is common to find construction shortcomings that constitute violations of the ADA regulations or the California Building Code (CBC). (As we know, the ADA is a civil rights law not enforced by the local building department.) Shortcomings may be attributed to any number of issues, and it is difficult to be specific. However, some potential causes can be linked to errors in design, engineering, construction or inspection; poor specifications for furnishings and fixtures; or even simple wear and tear or maintenance procedures. Each situation is different and our best suggestion is to obtain a CASp inspection to identify any such violations as soon as possible. To learn more about CASp, visit www.dgs.ca.gov/dsa/Programs/programCert/casp.aspx.
Not necessarily. It is the sole responsibility of the business owner and/or the landlord to make sure that the facility is in compliance with the most restrictive requirements of both the California accessibility requirements AND the federal requirements under the ADA.
Remember that the accessibility requirements are reviewed by the building department only when a project is submitted for permit (meaning when you design, construct, alter, remodel, add, or change the use of or structurally repair a building or facility). Under the CBC, however, if you change the use of a room or space without submitting for a permit, the accessibility requirements of the CBC still applies.
Though the ADA contains similar construction and use requirements, it is important to remember that the ADA is a civil rights law, not a building code. The ADA applies to all the goods and services you offer to the public and this means that you have to address access to your goods and services even though you have never submitted for permit review by the building department.
In addition to physical/architectural access, “program” access is also required by ADA, Unruh Civil Rights Act, California’s Disabled Persons Act (CDPA), and California Government Code (GC) 11135. This includes allowing access with service animals and providing reasonable accommodations such as American Sign Language interpreters when necessary to ensure accessibility to a person with a disability.
It is possible that a particular degree of accessibility in an alteration might be found to be an “unreasonable hardship”, “disproportionate”, or “technically infeasible”. Such findings have specific meaning and must be approved and recorded by the building department at the time an alteration is made. There is no such thing as a retroactive waiver. For facilities that were built prior to January 26, 1992, the federal requirement is to remove barriers to the extent that it is “readily achievable” and evaluations to determine if removing a barrier is readily achievable should follow the technical guidance provided by the United States Department of Justice. Such an evaluation is a decision that a business must make based on the cost of barrier removal and the resources of the business, and may require the expert assistance of a CASp, a design professional, an attorney, and/or an accountant.
If you see clients at your facility, or if the public is able to access your facility to obtain access to your goods and services, your business is a “public accommodation”. Because it is the determination of “public accommodation” that triggers physical access requirements, it is important to consult a knowledgeable professional before assuming that your building is exempt. In many cases, the assumption turns out to be incorrect, leaving the building owner and tenants at risk of violating the ADA.
The ADA contains a list of businesses and operations that are considered to be “public accommodations.” However, state law more broadly requires equal access for people with disabilities or medical conditions “to the full and free use of the streets, highways, sidewalks, walkways, public buildings, medical facilities, including hospitals, clinics, and physicians’ offices, public facilities, and other places’ (see California Government Code): http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=54.&lawCode=CIV
Please note: if your facility was built after January 26, 1993, the accessibility provisions in the ADA Accessibility Guidelines apply, and there is no alternative to provide a lower level of access than that which is stipulated by the accessibility guidelines and regulations under the ADA.
This is a flawed idea. It is illegal to violate civil rights laws. The “waiting to get sued” approach is a very costly strategy. If your business is sued for violations of the ADA, you are likely to incur substantial legal fees because if a claim is substantiated you will be responsible for your own legal fees and costs, the plaintiff’s legal fees and costs, and any damages that are awarded. This is in addition to the costs of making the required improvements to correct violations. In many cases, lawsuit-related expenses and costs exceed the construction costs for achieving compliance with the law.
Additionally, if a person with a disability is injured because a business failed to meet its access obligations, the results can be catastrophic for all parties involved. Prior to making a conscious decision to ignore your responsibility to provide access, you should check with your insurance company to determine if you are left more vulnerable if an injury on your property is caused by a civil rights violation. Many insurance policies do not cover ADA violations.
The ADA is directed to businesses, not just property owners. Nearly all ADA lawsuits are filed against both the operating business owner (tenant) and the property owner (landlord).
Compliance is not only the landlord’s responsibility. Both the lessor and lessee are responsible and liable for the accessibility of the facility. If you lease or rent a facility, it generally is advisable to have an agreement with your landlord that sets forth who is responsible for providing and maintaining the facility’s accessible features.
Under California law, lease and rental agreements must state whether the property was inspected by a CASp. If it has and the property is compliant with all applicable construction-related standards, the landlord must share the CASp report and inspection certificate with you. If an inspection has not yet been performed, you may hire a CASp to evaluate the property. These disclosures, arrangements and terms of agreement are to be mutually agreed upon by you and the landlord prior to the execution of the lease.
It is important as a tenant to know your rights, the obligations of the landlord, and be provided a copy of the CASp report (if applicable). Some leases purport to shift the obligation onto the tenant. The lease may require the tenant to indemnify the landlord for all the landlord’s expenses, including the landlord’s legal fees and costs of remediation. This expense can be devastating to a tenant business. The best time to have a conversation with your landlord is before a problem arises.
The Fair Housing Act (FHA) requires all “covered multi-family dwellings” designed and constructed for first occupancy after March 13, 1991 to be readily accessible to and usable by persons with disabilities. Under Chapter 11A, condominiums with four or more dwelling units and apartments with three or more dwelling units must comply with accessibility provisions of the CBC. Discrimination based on disability in housing is also prohibited by the FHA.
The California Fair Employment and Housing Act (FEHA) covers many different types of residential buildings and facilities, including private housing, housing available for public use, projects receiving federal funds to provide housing, social service center establishments that provide housing of a non-transient nature, and more. The specific accessibility requirements based on funding, ownership and/or type of use may trigger different regulatory requirements under both the state and federal standards and regulations. In addition to physical accessibility, the Federal Fair Housing Act and the FEHA also require that housing providers make reasonable accommodations to provide equal access to people with disabilities. A common example of a housing accommodation is to waive a no-pets policy to allow a person with a disability to live with an assistance animal. When covered multifamily dwellings are subject to the requirements of more than one jurisdiction or law, compliance with each law is required. Where federal, state, or local laws differ, the more stringent requirements apply.
In addition, facilities that are open to the public, such as rental offices, must comply with the ADA and CBC Chapter 11B.
The best resource for additional information regarding the scope and application of California and federal accessibility standards are the California Housing and Community Development Department and the Division of the State Architect. A helpful resource for additional information on other access and reasonable accommodations requirements is the California Department of Fair Employment and Housing: www.dfeh.ca.gov.
All common use areas serving covered multifamily dwellings are also subject to the accessibility requirements in Chapter 11A, and the accessibility and reasonable accommodations requirements in the ADA, the Unruh Act, and the Disabled Persons Act. Most multifamily dwellings are also covered by the Federal Fair Housing Act, the FEHA, and the CBC, Chapter 11A. Public use areas that are part of a residential project, including a rental and/or sales office, are required to comply with all of these laws.
False! If you have been sued or paid a settlement and did not fix the issue, then you are still at risk. If you did fix the issue, you may still be responsible for accessibility or reasonable accommodations problems that the individual who filed the lawsuit did not identify as an ADA violation, then you are still at risk.
The most important step is the first one; accept the legal responsibility to make your building or business compliant with access laws just as you do with health and safety laws. You may be surprised that many issues, such as adding signs, restriping parking stalls, lowering restroom mirrors, or changing door hardware, are simple to fix. Each small step you take to improve access to your building or business will reduce your exposure to lawsuits as your building becomes more and more accessible.
There are advantages to taking steps toward compliance. First, most courts look favorably upon proactive businesses that have a plan of action to fix their building, even if the plan is not yet finished. So, even if you’re sued, you may lower your financial exposure to damages.
Furthermore, the Construction-Related Accessibility Standards Compliance Act (CRASCA), as amended by SB 1186 (Steinberg 2012), reduced statutory damage amount. If a business hires a CASp when the violation is corrected within 60 days, damages are reduced from $4,000 to $1,000. If a small business corrects the violation within 30 days, even without a CASp inspection, damages are reduced from $4,000 to $2,000.
Amendments under SB 269 provides small businesses (fewer than 50 employees) a grace period from the liability for statutory damages for 120 days following the date that a structure or area was inspected by a CASp, to allow the business time to remove barriers that the specialist identifies. Businesses may get 180 days to correct violations if a building permit is needed to make the corrections.
SB 269 also creates a rebuttable presumption, for the purpose of an award of minimum statutory damages (civil rights damages), that certain technical violations do not cause the plaintiff to experience difficulty, discomfort, or embarrassment. SB 269 states for purposes of the presumption that a small business has 25 or fewer employees. A small business must correct the technical violations within 15 days of the service of a summons and complaint asserting an access claim or receipt of a written notice.
The claim must be based on one or more of the following technical violations: 1) Interior signs, other than directional signs or signs that identify the location of accessible elements, facilities or features when all are not accessible; 2) The lack of exterior signs, other than parking and directional signs; 3) The color of parking signs, provided the background contrasts with the color of information; 4) The order in which the parking signs are placed or the exact location or wording of parking signs; 5 )The color of parking lot striping, provided that its exists and there is sufficient contrast; 6) Faded, chipped, damaged, or deteriorated paint in otherwise fully compliant parking spaces and passenger access aisles; and 7) The presence or condition of detectable warning surfaces on ramps; except when ramp is part of a pedestrian path of travel that intersects with a vehicular lane or other hazardous area.
CCDA has a “top ten” list on its website of the most frequently complained-of access barriers. Looking at the items on that list may be a good way to start. The best way to ensure compliance and reduce the risk of getting sued is by obtaining an inspection report of their facility by a CASp. Finally, there are tax credits available to you to offset the cost of creating disability access such as: The California Business Portal “Go-Biz”: http://businessportal.ca.gov/. You can check with your tax specialist for details.
Under the CBC, alteration projects are subject to the following compliance provisions:
Area of alteration: The area of alteration must meet the accessibility provisions in accordance with current ADA and CBC requirements.
‘Path-of-travel improvements’: Outside of the area of alteration, accessibility requirements must also be addressed. Both the CBC and the ADA require alteration projects to improve the access required to and within the facility. These improvements, called “path-of-travel” improvements, are improvements that are not part of the area of alteration, but require improved access to the altered area from accessible parking stalls and other site arrival points, and also address improved accessibility of restrooms, signs, and drinking fountains serving the area of alteration.
The path-of-travel obligation requires that these elements be brought up to current building code requirements as part of the alteration project. A permit will not be issued unless these elements are added to the project scope.
Unreasonable hardship: The ADA limits the improvements to the path-of-travel to 20% of the total project cost.
The CBC has a similar limitation, but the limitation does not apply when the cost of the total project exceeds a specified amount, which is adjusted annually; as of January 1, 2018, the amount is $161,298.
Even so, the CBC allows for an “unreasonable hardship exception” in certain circumstances. The building department issuing the permit must make certain specific findings in order for the exception to apply. You would need to consult with the building official to determine if this hardship exemption would be applicable to your project.
In assessing the accessibility requirements of an alteration, addition, change in use, or structural repair of a building or facility; you should consult with a competent licensed design professional to understand the scope of work and ensure you are meeting state and federal regulations with regard to accessibility. In addition, if your architect or contractor is not a CASp, you may want to hire a CASp separately to review any construction documents for compliance.
While it is good business practice to provide assistance to all your customers, and you are required to provide reasonable accommodations to people with disabilities, assisting individuals with disabilities in lieu of providing the necessary improvements is not a solution that is compliant with federal or state law. The ADA and state law require “equal access”, which means independent access without assistance. A business that is only accessible to people with disabilities if they have to ask for special help is actually in violation of these laws.
If an individual with a disability has not visited your business, it is likely because your facility is not accessible. It is important to recognize that individuals with mobility impairments or those who use a wheelchair or walker are not the only individuals protected under the ADA. The ADA requires access to all individuals who may have a disability, including individuals who are blind or have a vision disability, are deaf or hard of hearing, have intellectual disabilities, and people with mental health disabilities. Chances are, your business has served customers with disabilities but you did not notice the disability. Some studies show that 6-9% of individuals under the age of 65 have a disability; approximately 2 to 4 million people. In providing equal access, you open your facility to the potential buying power of 4 million additional customers.
Yes. A service animal is not a pet. The ADA requires you to modify your “no pets” policy to allow the use of a service animal by a person with a disability.
If you don’t believe that an animal is a service animal, you are permitted to ask two questions. The first question is “Is your animal a service animal?” The second question is “What kind of service does the animal provide.” If you’re informed that the animal is a service animal and does in fact perform work for the person with a disability you are prohibited from asking additional questions. The person should be allowed into your place of public accommodation without any further inquiries.
Please note that you are not allowed to ask a person with a service animal any details about their disability or ask that the animal demonstrate a task that it can perform.
In many cases, it is obvious whether or not an animal is a service animal. A person coming into your establishment who uses a wheelchair and is accompanied by a dog, or a blind individual with a guide dog, is likely being accompanied by a service animal. However, you should know that certain people with “invisible disabilities” also rely on service animals. For instance, people with seizure disabilities often have a dog that can detect an oncoming seizure so that their human companion can administer medication in advance of the seizure or get to a safe place. Sometimes, people have what are known as “psychiatric service animals.” For instance, many wounded warriors living with PTSD Post-Traumatic Stress Disorder (PTSD) use service dogs to cue them to whether a situation or area is safe.
Under the ADA only dogs (and sometimes miniature horses) are considered to be service animals. Under California law, any animal trained to perform a specific task can be a service animal.
It is illegal under the ADA and the FEHA to discriminate in your hiring practices. In fact, this sort of thinking undermines the essential purpose of these laws that persons with disabilities have the opportunity to participate in all facets of public life and employment. Like most civil rights laws, the ADA and FEHA do not mandate an equality of outcome, but they do require an equality of opportunity. This is why these laws require commercial facilities built after passage of the ADA provide physical access to employee and common use areas of the facility and require business owners to provide a reasonable accommodation for employees and job applicants who have disabilities.
Whether or not you have employees with disabilities, you must serve members of the public with disabilities, and you must provide them “full and equal” access to your products, goods and services, and all the benefits of your business.
Everything CASp & Lawsuits
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.
Qualified businesses may display a CASp issued numbered, watermarked Disability Access Certificate, CASp. It is this that can help reduce potential legal costs which usually occur as a result of the extensive time spent when the plaintiff tries to get a “settlement” award.
It also means that you can request an early evaluation conference with a judge or commissioner who has received specialized training in accessibility laws and requirements. The judge or commissioner will review the case and any claimed violations. It is the “special legal rights” that one receives, that reduces the likelihood of a “certified” business being targeted with frivolous lawsuits. Of course this is also a law that aims to ensure that the rights of those with disabilities will be respected and catered for.
Other benefits include:
- A 90-day stay of court proceedings, which is granted so that the early evaluation conference can be held.
Reduced minimum statutory damages from $4,000 to $1,000, if you are found in violation of a construction-related accessibility requirement and correct the violation within 60 days.
The CASp Certificate will potentially protect you from ADA Lawsuits while you bring your property into compliance.
It is extremely beneficial for business owners to get their properties CASp Certified. The Construction-Related Accessibility Standards Compliance Act, California Civil Code, Sections 55.51-55.54 went into effect on July of 2009 and was based upon SB-1608. The goal of this law is to educate and facilitate business owners as opposed to imposing punishment. Meeting these requirements is completely voluntary, but the goal is to encourage owners to upgrade their properties and bring them in line with code requirements by giving them “protection” or “special legal rights” against accessibility related lawsuits. It does not matter whether the certification issued is designated as “CASp determination pending” or “CASp-Inspected”, as the “special legal rights” granted go into effect immediately. It is only once all barriers are corrected to the fullest extent possible, that the final certification is issued and reads, “CASp-Inspected”. When businesses are able to display this certificate, their exposure is significantly reduced and they are far less likely to be targeted.
The cost of retaining a CASp specialist to audit your property and set up a plan to bring your property up to code, will be a meaningful and comparatively nominal investment in comparison to the costs incurred when owners are sued for ADA compliance violations. The rule should be PREVENTION. In addition to this, a property takes on an additional value in terms of its’ marketability, when it is CASp Certified.
Make sure you hire a Certified Access Specialist (CASp), to do an ADA survey of your property.
You can retain the services of a CASp at any time; however, “qualified defendant” status is only provided if you receive an inspection of your existing facility, a report from a CASp, and have a compliance schedule in place before a construction-related accessibility claim is filed. The “qualified defendant” benefits are as follows:
- Reduced statutory damages (see “What is my potential liability if I am not in compliance?” for more information).
- 90-day stay of court proceeding and an early evaluation conference.
Additionally, an inspection by a CASp and following the schedule of improvements demonstrates the intent to be in compliance.
While the building code may change periodically, these changes do not cause a facility to become noncompliant with the new regulations. Facilities must comply with both federal and state accessibility standards; however, the current version of the state accessibility standards is not necessarily applicable to your existing facility. A CASp will know, based on its age and history of improvements, which version of the building code is applicable for determining compliance of your facility.
With a CASp inspection, completed according to CRASCA (see “What should I look for in a CASp Inspection?”), you are considered “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.
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.
There is no law that requires a property owner or tenant to hire a CASp. If you are a business or property owner, your election not to hire a CASp shall not be admissible to prove your lack of intent to comply with the ADA or California law. If a CASp solicits your business with threat of legal action of a construction-related accessibility claim if you do not contract for services, you should immediately file a complaint with DSA.
DSA provides Certified Access Specialists List on its website. You can find an independent CASp on the list by looking for the CASp in your geographic region that states he/she performs inspections. For ease in using the list, click on the “Phone #” link in the gray header of the list, and the list will sort by area code. Those with a “Yes” in the “Do Inspections” column are independent CASps who are available for hire.
You may also consult with a CASp by contacting your local city or county building department; however, a CASp employed or retained by a local building department is only authorized to offer information regarding compliance to California construction-related accessibility standards, and not the ADA, and will usually only provide these services for new construction, additions, or alterations submitted for approval for permit.
We encourage you 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.
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.”
- An identification and description of the inspected structures and areas of the site.
- 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.”
- 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.
- An identification and description of the inspected structures and areas of the site.
- The date of the inspection.
- 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.”
- An identification and description of the structures or areas of the site that need correction and the correction needed.
- 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.
Certification applies only to a CASp, and indicates that the individual has passed an examination and is certified by the State of California to have a specialized knowledge and application of state and federal laws and standards governing rights of individuals with disabilities. A CASp can conduct an inspection of your facility for compliance to applicable construction-related accessibility standards, but does not, and cannot, issue certification that a facility is compliant, nor can a CASp certify that a manufacturer’s product meets accessibility requirements. A CASp can only issue a disability access inspection certificate, which is a record that a CASp has performed an accessibility inspection of your facility, and that you hold an inspection report and schedule according to the requirements of CRASCA.
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.
If your CASp inspection report has a determination of “meets applicable standards,” then the CASp has determined that your facility meets applicable construction-related accessibility standards. Keep the CASp inspection report in your records and maintain the accessible features of your facility.
If your CASp inspection report has a determination of “inspected by a CASp” you should strive to adhere to your schedule for improvements to come into compliance with applicable construction-related accessibility standards. Keep the CASp inspection report in your records. After improvements to come into compliance have been made to your property, you do not need to obtain a final inspection from a CASp in order to obtain or maintain “qualified defendant” status; however, you may elect to do so to ensure that improvements were made in compliance to the applicable standards. Most important, maintain the accessible features of your facility.
Your CASp inspection report does not expire and your “qualified defendant” status remains in place provided no additions, alterations, or improvements are made to the inspected area after you have achieved compliance. Improvements made with or without a permit affect the accessibility of the inspected area; therefore, you will need to obtain a new inspection by a CASp to once again become a “qualified defendant.” If your improvement is made with a permit through the local building department, you can request to have a CASp working for the building department perform the final inspection, as this also provides you with the legal benefits of a 90-day stay and an early evaluation conference for the improved area.
Improvements to existing facilities, buildings, and sites, made with or without a permit, must comply with the accessibility provisions of the California Building Code and the ADA Standards. You should ask your local building department if any proposed improvement requires a permit and/or the services of a licensed design professional such as an architect or engineer.
Prior to construction of your building project, a CASp is able to review the drawing plans for compliance to applicable construction-related accessibility standards. A CASp can also provide consultation services on other accessibility issues. While these services will not offer you “qualified defendant” status, you may be assured that planned improvements take into consideration construction-related accessibility requirements.
Plans submitted for permit through the local building department for corrections are entitled to an expedited review if the applicant presents the disability access inspection certificate, declares that the project is for the correction of violations as listed in a CASp’s inspection report, and a CASp has reviewed the project plans submitted for permit.
f you receive a construction-related accessibility lawsuit, a review by a CASp of the alleged violations can help determine their validity. A CASp inspection performed after receiving a lawsuit will not, however, provide you with protections as a “qualified defendant” in that lawsuit.
Ultimately, a CASp can inspect your property for compliance issues at any time. While hiring a CASp after a claim has been filed against you may not offer you legal benefits for the present claim, it can provide you with legal benefits on any future accessibility claim that may be filed against you. Having a CASp inspection and possession of a CASp inspection report prepared according to CRASCA will offer you the legal benefits of a “qualified defendant” and may, if you are eligible, offer you a grace period from liability for statutory damages of those violations identified in the report while you are making improvements, and may reduce your liability from statutory damages for future claims that may be filed on the inspected area.
If you receive a construction-related accessibility lawsuit, a review by a CASp of the alleged violations can help determine their validity. A CASp inspection performed after receiving a lawsuit will not, however, provide you with protections as a “qualified defendant” in that lawsuit.
Ultimately, a CASp can inspect your property for compliance issues at any time. While hiring a CASp after a claim has been filed against you may not offer you legal benefits for the present claim, it can provide you with legal benefits on any future accessibility claim that may be filed against you. Having a CASp inspection and possession of a CASp inspection report prepared according to the Construction-Related Accessibility Standards Compliance Act will offer you the legal benefits of a “qualified defendant” and may, if you are eligible, offer you a grace period from liability for statutory damages of those violations identified in the report while you are making improvements, and may reduce your liability from statutory damages for future claims that may be filed on the inspected area.