NEW ACCESSIBILITY LAWS MAY PROVIDE BUSINESS PROTECTION, By DAVID CARLSON

The Americans with Disabilities Act (ADA) has been the law of the land for more than two decades, and access  compliance has been a part of the California Building Code (CBC) even longer. The ADA and CBC have broad implications for business; nearly all brick and mortar public facilities (including professional offices) are potential targets of accessibility-related lawsuits. California has the dubious honor of being the most litigious state, and is home to 40 percent of all such lawsuits. It would be easy to say the majority of these cases are frivolous. Some clearly are, but many are not. The courts have little sympathy for businesses skirting accessibility laws. Businesses cannot afford to plead ignorance to their legal obligations.

In the early 2000s, the California Legislature recognized that the number of access violation lawsuits was increasing dramatically with little attempt by the private sector to ameliorate the underlying issues. In 2008, the Legislature passed SB 1608 in an attempt to reduce the number of frivolous lawsuits while increasing accessibility at public accommodations. This bill established the Certified Access Specialist program (CASp) to help business owners identify and rectify access violations. Under SB 1608, proprietors who have their establishments inspected by a CASp inspector are afforded certain protective steps prior to costly litigation. Statutory damages, while still steep, are limited to $4,000 per violation. Non-inspected businesses have no limit on the damages they may face. In addition, licensed architects in California are now required to complete several hours of access compliance continuing education each licensure period, thereby keeping access a high priority for all design professionals.

Unfortunately, access lawsuits continued to escalate while compliance by the business community continued to lag, even after SB 1608. In 2012, SB 1186 was passed by both houses of the Legislature. Among its requirements, this law allows business owners 60 days to correct violations and reduces potential penalties to $1,000, provided they have had a CASp inspection. It also ends “demand for money” letters as they have been done in the past. In any initial correspondence, plaintiffs must clearly identify the perceived violation and how they were barred access. They are also not permitted to demand money in lieu of litigation. Any demand letters must be submitted to the State Bar to ensure such letters comply with the law. In addition, all commercial landlords must now disclose to prospective tenants whether  their property has been CASp-inspected. If requested, reports must be provided to allow prospective tenants to make informed decisions regarding potential accessibility deficiencies prior to signing any lease agreement.

The recent legislation aims for a more access-compliant California. The best thing business owners can do to protect themselves from access compliance litigation is to hire a CASp inspector to perform a complete survey and report of their properties. Even though one may think one has a fully compliant facility, the codes are very specific. Something as seemingly insignificant as a mislabeled sign or a mirror mounted at the wrong height can be a costly lesson. But the CASp report is not meant to be a dust collector on a high shelf in the office. It is every business owner’s responsibility to actively work to provide universal access to all and continuously remove barriers from storefronts. It is far better to be proactive and correct access violations than to wait for a lawsuit to come knocking at your door.

David Carlson is a licensed architect in Camarillo and a Certified Access Specialist in the State of California. He is founder of CamCASp Services, Inc. and can be contacted at david@camcasp.com.

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