Note: Information provided on this website is not intended to be legal advice. If you are a recipient of a demand letter regarding a construction-related accessibility claim, you are advised to consult an attorney prior to contracting the services of a Certified Access Specialist (CASp).
What is the ADA and how does it apply to my business or facility?
The Americans with Disabilities Act of 1990 (ADA) is federal civil rights law that prohibits discrimination of individuals with disabilities and requires all public accommodations and commercial facilities to be accessible to individuals with disabilities. Since January 26, 1992, all new construction and all additions and alterations to existing buildings are required to comply with the ADA. The ADA contains no "grandfathering" provisions, therefore, places of public accommodation constructed before January 26, 1992 are required to remove barriers if it is "readily achievable to do so." Existing facilities that built between January 26, 1992 and March 14, 2012 are required to be in compliance with the 1991 Americans with Disabilities Act Accessibility Guidelines (1991 ADAAG) have safe harbor for most provisions of the current 2010 Americans with Disabilities Act Standards (2010 ADAS) which became effective for facilities built after March 15, 2012. 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.
What are the California laws relating to disability access?
All text of California Law can be accessed online at the California Legislative Information website. This list is not intended to be inclusive:
- Unruh Civil Rights Act - Civil Code 51-52
- Disabled Persons Act - Civil Code 54-55.32
- Access to Public Accommodations by Physically Handicapped Persons - Health and Safety Code 19955-19959.5
- Construction-Related Accessibility Standards Compliance Act - Civil Code 55.51-55.545
- Statutory Damages in Construction-Related Accessibility Claims - Civil Code 55.56
- Disclosure of CASp Inspection and Determination in Lease Agreements - Civil Code 1938
- Requirements for Plaintiff's Complaint of Alleged Access Barrier - Code of Civil Procedure 425.50
What is my potential liability if I am not in compliance?
Civil Code 55.56, as enacted by SB 1608 legislation, provides for statutory damages of $4,000 if the plaintiff is denied full and equal access to a place of public accommodation on a particular occasion or visit, not $4,000 per each violation as previously allowed under the Unruh Act, Civil Code 52(a). According to Civil Code 55.56, a person is denied full and equal access only if the individual personally encountered the violation on a particular occasion, or the individual was deterred from accessing a place of public accommodation on a particular occasion. A violation personally encountered by an individual may be sufficient to cause a denial of full an equal access if the person experienced difficulty, discomfort, or embarrassment because of the violation.
How does someone demonstrate that he/she was denied access?
According to the Code of Civil Procedure 425.50, an individual that alleges a construction-related accessibility claim must address the following items in the claim:
- An explanation of the specific access barrier and the location of the alleged barrier.
- The way in which the barrier denied the individual full and equal use or access, or in which it deterred the individual, on each particular occasion.
- The date or dates of each particular occasion on which the person encountered the specific access barrier, or on which he/she was deterred.
Who has responsibility for ADA compliance in leased places of public accommodation, the landlord or the tenant?
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, California Senate Bill 1186 (SB 1186) passed in 2012 requires a commercial property owner or lessor to disclose on every lease form or rental agreement executed on or after July 1, 2013, whether the property being leased or rented has undergone inspection by a CASp, and, if so, whether the property has or has not been determined to meet all applicable construction-related accessibility standards.
What is an applicable construction-related accessibility standard?
"Construction-related accessibility standard" is defined as a provision under state or federal law for making new construction and existing facilities accessible to persons with disabilities. Facilities must comply with both federal and state accessibility standards, however, the current version of state and federal accessibility standards are not necessarily applicable to your existing facility. A CASp will know which version of the code and standards is applicable to the compliance of your facility based on its age and history of improvements. In addition to the accessibility standards of the ADA, the applicable state standard for your facility is the version of the California Building Code (CBC) under which the facility or improvement to your facility was constructed. For existing facilities, the current 2013 California Building Code applies only to a planned addition, alteration, or improvement of the facility which occurs after January 1, 2014.
What are SB1608 and SB1186?
SB 1608 and SB 1186 are two legislative bills that were passed in California aimed to encourage accessibility compliance by business and property owners and also to curb excessive accessibility-related litigation. California Senate Bill 1608 (SB 1608-Corbett, Chapter 549, Statutes of 2008) was passed in 2008 and created the Construction-Related Accessibility Standards Compliance Act (CRASCA, Civil Code 55.51-55.545). This law states that if a business or property owner authorizes the inspection of a facility by a CASp and receives a CASp inspection report prior to being served a lawsuit for violation of a construction-related accessibility standard, and makes accessibility improvements to come into compliance according to the schedule provided with the CASp inspection report, that individual receives "qualified defendant" status in California Court. California Senate Bill 1186 (SB 1186-Steinberg, Chapter 383, Statutes of 2012) was passed in 2012 and reduced statutory damages for certain violations. Included among its many provisions is that a commercial property owner or lessor shall state on every lease form or rental agreement executed on or after July 1, 2013, whether the property being leased or rented has undergone inspection by a CASp, and, if so, whether the property has or has not been determined to meet all applicable construction-related accessibility standards. Additionally, SB 1186 requires cities and counties to collect an additional $1 fee for issuance or renewal of a business license to establish programs on disability access education for the business community.
Why is it beneficial to hire a CASp?
A CASp 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. 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 and a report from a CASp, and abide to a schedule of improvements toward compliance before a construction-related accessibility claim is filed against you.
Am I required by law to hire a CASp?
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 the Division of the State Architect CASp Certification Unit.
How do I find a CASp?
The Division of the State Architect provides a list of Certified Access Specialists on its website. If you are inquiring about the compliance of an existing facility, an independent CASp will be able to determine your compliance to both state and federal standards. You can find an independent CASp on the list by looking for the CASp in your geographic region that states he/she performs inspections. 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.
What is certified when I hire a CASp?
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 of state and federal laws governing rights of individuals with disabilities and the applicability of state and federal construction-related accessibility standards. A CASp can conduct an inspection of your facility for compliance to applicable construction-related accessibility standards, but does not and cannot certify that a facility is compliant, nor can a CASp certify that a manufacturer's product meets accessibility requirements.
What is a "qualified defendant?"
A defendant in a construction-related accessibility claim against a place of public accommodation becomes a "qualified defendant" if a CASp has performed an inspection of the area with the violation and has issued a CASp inspection report to the business/facility owner prior to the date the defendant was served with a lawsuit. The CASp inspection report should state a determination of either “meets applicable standards” or “inspected by a CASp”. A report with a determination “inspected by a CASp” will identify violations of the applicable standards, list necessary improvements for their correction, and will be accompanied by a schedule for completion of the improvements over a reasonable time. To be a “qualified defendant”, you do not have to be the party who hired the CASp, so long as the basis of the lawsuit is a construction-related accessibility claim. In addition, the facility inspected does not need to be compliant with applicable construction-related accessibility standards in order for you to become a "qualified defendant". Upon being served with a lawsuit asserting a construction-related accessibility claim, a "qualified defendant" may request a court stay to postpone legal proceedings and an early evaluation conference.
In addition, SB 1186 legislation provides that you may be entitled to reduced statutory damages in the following instances:
- The area with respect to the plaintiff's claim was determined to be "inspected by a CASp" or "meets applicable standards" prior to the occasion the plaintiff was denied access; the area has not been modified since receiving a determination of "meets applicable standards" or the area was in progress of improvements toward compliance according to the schedule indicated in the CASp Inspection Report; and that all violations giving rise to the claim have been corrected, or will be corrected within 60 days of the complaint being served. Statutory damages reduced from $4,000 to $1,000 per occasion the plaintiff was denied access.
- For a claim filed before January 1, 2018, that the site’s new construction or improvement on or after January 1, 2008, and before January 1, 2016, was approved pursuant to the local building permit and inspection process; that, to the best of your knowledge, there have been no modifications or alterations completed or commenced since the building department approval that impacted compliance with construction-related accessibility standards with respect to the plaintiff’s claim; and that all violations giving rise to the claim have been corrected, or will be corrected within 60 days of the complaint being served. Statutory damages reduced from $4,000 to $1,000 per occasion the plaintiff was denied access.
- The site’s new construction or improvement passed inspection by a local building department inspector who is a CASp; that, to the best of your knowledge, there have been no modifications or alterations completed or commenced since that inspection approval that impacted compliance with construction-related accessibility standards with respect to the plaintiff’s claim; and that all violations giving rise to the claim have been corrected, or will be corrected within 60 days of the complaint being served. Statutory damages reduced from $4,000 to $1,000 per occasion the plaintiff was denied access.
- You are a small business that employs 25 or fewer employees and have gross receipts of less than $3,500,000, and you declare that all violations have been corrected, or will be corrected within 30 days of being served with the complaint. Statutory damages reduced from $4,000 to $2,000 per occasion the plaintiff was denied access.
What should I look for in a written agreement for CASp services?
A CASp can provide to you a variety of accessibility services from consultation to full inspection services. The written agreement should specifically state the scope of work the CASp is providing. Most importantly, if you are seeking the services that offer you "qualified defendant" status, then the scope of services in 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) and a Disability Access Inspection Certificate will be provided to you.
- State if the CASp will be providing the schedule of improvements or will expect you to provide it.
- State the certification number of the CASp and the date of certification expiration.
- Provide a place for both parties to sign the agreement.
What should I look for in a CASp inspection report?
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 CASp shall provide the following items:
- 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.
For a site that is “inspected by a CASp” the CASp shall provide the following items:
- 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 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.
Along with your CASp inspection report you should receive a Disability Access Inspection Certificate and a notice about the safekeeping of CASp inspection reports. The CASp may request that a schedule for improvements be provided by you and submitted to the CASp for inclusion in the inspection report, depending on the nature and extent of improvements.
What is "readily achievable barrier removal?"
"Readily achievable barrier removal," applicable under the federal ADA to facilities that were constructed before January 26, 1992, is defined as "easily accomplishable and able to be carried out without much difficulty or expense." An assessment of whether or not removal of barriers at a specific site is readily achievable is a detailed process that must consider the following items:
- Identification of barriers to full accessibility.
- The scope and cost of measures necessary to remove or mitigate the barriers.
- Careful examination of the overall financial resources of the site and your business.
You may not want to release such personal information to the CASp you hire, and many CASps may not be qualified to make such an assessment. 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 file.
What is a Disability Access Inspection Certificate?
The Disability Access Inspection Certificate (Certificate) is a certificate 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. Disability Access Inspection Certificates are sequentially numbered and bear a State of California Seal to deter forgery. This 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. As a business/facility owner, you should accept no other certificate offered by a CASp other than a Certificate purchased from the Division of the State Architect. 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 you have had an inspection and are a holder of a CASp inspection report issued according to the requirements of CRASCA. In addition, 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.
I have a CASp inspection report and certificate. What should I do now?
If your CASp inspection report has a determination of "meets applicable standards", then the CASp has determined 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 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.
Can my CASp inspection report expire?
Your CASp inspection report does not expire and your "qualified defendant" status remains effective provided no additions, alterations, or improvements are made to the inspected area. (Improvements to come into compliance as indicated in a CASp inspection report that results in a determination of "inspected by a CASp" do not affect your "qualified defendant" status.) 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 given through the approval process by a local building department, you can request to have a CASp working for the building department perform the final inspection, as this also provides you a legal benefit in court.
Will improvements require a building permit?
Improvements to existing facilities, buildings, and sites, made with or without a permit, must comply with the accessibility provisions of the California Building Code. 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.
Will a CASp review my plans prior to construction?
Prior to construction of your building project a CASp can a 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 the improvements have been planned with accessibility in mind.
If I receive demand letter prior to a lawsuit regarding an access violation can a CASp still help me?
In the event you receive a demand letter prior to a lawsuit, a review by a CASp of the alleged violations can help determine the validity of the violations and the best way to correct them. In order for you to be considered a "qualified defendant", however, the CASp must provide the inspection and report to you prior to a construction-related lawsuit is filed against you, and it must include a schedule of improvements for the correction of any identified violations.
Ultimately, a CASp can inspect your property for compliance issues at any time. Time is of the essence between the receipt of a demand letter and the filing of a lawsuit, and such timing may not be sufficient for you to hire a CASp to complete the inspection and reporting process in order to receiving "qualified defendant" status for any pending litigation, however, having a CASp Inspection and possession of a CASp Inspection Report prepared according to CRASCA will offer you the legal benefit of "qualified defendant" and reduced statutory damages in any future claims that may be filed against you.