Disability Access Law Reform
Disability Access Law Reform – Where Are We Today?
The San Clemente Chamber of Commerce is reminding businesses of the opportunities they have to comply with the Americans with Disabilities Act (ADA), diminish their risk of being sued for denial of full and equal access to individuals with disabilities, and/or potentially reduce the fees and damages incurred if litigation is filed.
During the 2007-08 legislative session, the Chamber and other business groups worked closely with legislators and their staff, disability rights groups and the consumer attorneys to achieve historic reform to California’s disability access laws.
The reform legislation, SB 1608, (Corbett; D-San Leandro, Chapter 549). Statutes of 2008), is designed to promote and increase compliance with laws providing equal public access in places of business to individuals with disabilities, while reducing unwarranted litigation that does not advance that goal.
Created State Program for Certified Access Specialists
One of the key benefits provided by SB 1608 is the availability of Certified Access Specialists (CASp) who are trained and certified as experts in the disability access building requirements. Approximately 330 CASp inspectors statewide are available to inspect building plans and/or existing buildings to determine if the buildings are ADA compliant or if there are deficiencies that need to be resolved.
Contact information for all CASp inspectors is available at the website of the California Department of General Services, Division of the State Architect, https://www.apps.dgs.ca.gov/casp/casp_certified_list.aspx. In addition, all local building inspection offices should have at least one CASp inspector on staff.
A business owner can voluntarily ask a CASp inspector to:
- Inspect building plans for new construction to ensure that any new building complies with disability access laws; or
- Inspect an existing building to determine if there are any deficiencies. The cost of such an inspection is negotiable and varies among different specialists. Once a CASp inspector has inspected the requested site, the business owner can obtain a certificate to display in the window of the establishment that notifies the public the establishment has been inspected by a CASp. The presumed benefit of this certificate is to inform the public that the owner/tenant has taken steps to make sure it complies with the law and therefore is not an easy target for a disability access case.
Opportunities for Early Resolution of Lawsuits
Pursuant to SB 1608, an attorney who files a lawsuit alleging a construction-related accessibility claim also must file and serve a written notice that provides an explanation of the building owner/ tenant’s legal rights, including the right to seek an attorney experienced with ADA lawsuits. An attorney’s failure to provide this written notice at the time of filing is a violation that can be reported to the California State Bar.
If litigation is filed and the business owner has had a CASp inspection completed, the business owner may request a 90-day automatic stay of the lawsuit and an Early Evaluation Conference to determine the viability of the claims made. This stay and conference will prevent either side from unnecessarily incurring litigation-related fees and costs. Notably, the business owner must provide evidence of the CASp inspection report to the plaintiff as well as the court at least 15 days before the scheduled Evaluation Conference. Business owners are encouraged to confer with legal counsel on this issue, as well as any litigation filed.
To further encourage early resolution of any disability access case, SB 1608 limits a plaintiff’s statutory damages under the Civil Code to one violation per occasion upon which the plaintiff was denied full and equal access at a distinct facility, rather than allowing a plaintiff to claim multiple violations on each occasion and therefore multiple requests for statutory damages. Courts also may consider reasonable settlement offers made between the parties when evaluating the award of any request for attorney’s fees at the conclusion of the case. This aspect of SB 1608 places pressure on the plaintiffs and their attorney to make realistic demands of the business owner during litigation.
California Commission on Disability Access
Another important element of SB 1608 was the creation of the California Commission on Disability Access (CCDA). This commission is designed to study and report on compliance issues business owners and disabled individuals have with state laws and regulations concerning disability access; the effectiveness of the CASp program; and the need for additional training and education.
The CCDA also will study whether the reform provided by SB 1608 has achieved the desired goal of reducing frivolous and unnecessary civil lawsuits, while encouraging disability access compliance.
Business Owners Should Take Advantage SB 1608
All business owners are encouraged to take advantage of the benefits offered by SB 1608 by obtaining a CASp certification. Although SB 1608 provides no guarantee that a business owner who is CASp-certified will not get sued, it certainly will reduce the business owner’s risk of frivolous litigation, as well as provide additional protections not otherwise available to the business owner if litigation is filed.
Contact information for all CASp inspectors is available at:
https://www.apps.dgs.ca.gov/casp/casp_certified_list.aspx.
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