Protecting you and your Business: Americans with Disabilities

4 March 2010, Comments: Comments Off on Protecting you and your Business: Americans with Disabilities

Since 1969, California laws have entitled individuals with disabilities to full and free access to all buildings and facilities open to the public — including rental housing1. California law later added civil penalties, including a private right of action, allowing for attorneys’ fees and injunctive relief. With the lucrative prospect of civil penalties, lawsuits began to rise against businesses, filed by attorneys who alleged failure on the part of those businesses to comply with access laws. Unfortunately, however, the focus of these lawsuits was on the pay out of money damages demanded by the attorneys and not on the assurance that the building would actually comply with the law.

Effective January 1, 2009, business owners will be provided additional incentives to comply with long-standing state and federal disability access laws. Under the law, an owner of a business that is open to the public (which includes rental housing), may obtain from a California Certified Access Specialist (CASp) an assessment of their premises and a statement of opinion on whether the premises meets applicable federal and state accessibility standards. A building owner may obtain from the CASp a disability access inspection certificate, which the owner can post on the premises to demonstrate compliance.

In exchange for undergoing the certification process, the law offers business owners a way out of the burdensome and expensive litigation process. If the owner faces a claim that his/her building is not accessible to the disabled — despite having a certificate of compliance — the owner can quickly move to obtain a stay (stoppage) of the litigation action and move through an expedited court process.

More significantly, a business owner who holds a certificate from a CASp cannot be subjected to the type of drive-by lawsuits that many businesses have faced in recent years. Anyone who files a claim against a business owner who holds a certificate must have personally encountered the violation or must have personally been deterred from accessing the business in question before that person may commence an adverse action. This personal encounter requirement is one of the biggest departures from existing law. The plaintiff must now show actual proof that he/she was harmed by the lack of access to the premises. Business owners without a certificate will continue to be subject to existing laws that allows for a private right of action lawsuit where no personal encounter is required and where no expedited court process is authorized.

Business owners may post on their premises a disability access inspection certificate, unless, however, following the date of inspection, the inspected premises have been modified or construction has commenced to modify the inspected site in a way that may impact compliance with construction-related accessibility standards.

Obtaining a certificate from a CASp is entirely voluntary. Nothing in the law requires a property owner or tenant to hire a CASp. Moreover, a property owner or tenant’s decision not to hire a CASp cannot be used in court to prove a person’s lack of intent to comply with the law.

Under the state law, the State Architect must establish a program for voluntary certification for any person who meets specified criteria as a Certified Access Specialist (CASp).

No later than October 31 of each year, the State Architect must publish and make available to the public a list of certified access specialists who have met the requirements of this law. According to the State Architect, the first group of Certified Access Specialists has been tested and approved. Check this website for a complete list of Access Specialists: https://www.apps.dgs.ca.gov/casp/casp_certified_list.aspx.

References:
Senate Bill 1608, Chapter 549, Statutes 2008
Business and Professions Code 5600
Civil Code Section 55.3

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