In an attempt to balance a response to perceived shake-downs of property owners by unscrupulous attorneys and their clients asserting specious accessibility claims, and a desire to incentivize compliance with accessibility requirements, the California Legislature has implemented California’s Construction-Related Accessibility Standards Compliance Act (the “Act”). The Legislature has required the State Architect (“DSA”) to establish and publiize a program for voluntary State certification of persons meeting the specified criteria as a certified access specialist (“CASp”). The DSA publishes a list of persons who have received CASp certification to meet the anticipated public need for experienced, trained and tested individuals who can render opinions as to the compliance of buildings and sites with the Americans with Disabilities Act (“ADA”) and State laws and regulations for accessibility. A CASp can be hired by owners to inspect their properties to determine whether the property complies with accessibility requirements.
Any attorney who sends a demand to a property owner or files a complaint in state court against a property owner asserting accessibility claims must provide the owner with a detailed notice of the legal rights and obligations of the property owner. When served with a state court complaint asserting accessibility claims, Defendants, whose properties have been inspected by a CASp and found compliant, or who have such inspections pending, have the ability to delay the lawsuit to enable the court to evaluate the inspection, and to seek early determination of the asserted claims by the court, potentially avoiding costly litigation.
Beginning July 1, 2013, California Civil Code §1938 requires all commercial property owners or lessors to provide information regarding inspections by a CASp in their leases. The statute does not require that inspections be undertaken, but if an inspection has been undertaken, it must be reported in the lease, including disclosure of any violations identified, and whether such violations have been remedied.
The Act does include some helpful notice requirements, the possibility of reduced fines and fees, as well as the potential to stay state litigation and secure early disposition of a case involving CASp inspected properties. The Act also requires plaintiffs seeking to recover statutory damages for failure to meet accessibility requirements to establish that the accessibility violations actually denied the plaintiff full and equal access to the place of the public accommodation on a particular occasion, or damaged them by creating embarrassment. Before the Act, recovery could be established by encountering a violation, without plaintiff suffering any actual damage or injury.
Unfortunately, the Act provides incomplete protection for property owners, as it only applies in claims brought in state court. Lawsuits filed under the federal ADA can be filed in federal court. A federal district court in California has ruled that the Act conflicts with ADA requirements and that the additional state procedural requirements facilitating early resolution of such cases do not apply to federal cases. Consequently, savvy plaintiffs’ attorneys are avoiding state court altogether, and filing accessibility claims in federal court to avoid the notice requirements and reduced penalties that the Act provides.
The obvious question is: Under what circumstances should a property owner undertake a CASp inspection? The answer depends upon the particular facts and circumstances of a property. Accessibility requirements are applicable to all properties involving public accommodation, which for the most part includes all properties used or available to the public. Accessibility claims can be brought by tenants, their employees and invitees, as well as members of the general public. Undertaking a CASp inspection presents several risks. Any identified violations will likely require immediate remediation. Disclosures of such inspections to tenants are required, and even if the owner is not inclined to remedy all of the identified violations, the tenants will insist, in order to insulate them from potential liability. Furthermore, the inspection report will support any claim asserted by a plaintiff following completion of such inspection, but prior to completion of remediation.
A further likely complication of CASp inspections is the relatively dynamic nature of accessibility regulations, and real questions as to application of new regulations to existing properties. It is quite possible that, rather than facilitating efficient resolution of accessibility claims, the new legislation will result in an increase in litigation involving retroactive application of new ordinances or regulations.
Property owners should correct real barriers to access immediately and train employees and staff regarding the basic requirements for accessibility, including how to anticipate and sensitively deal with reasonable complaints. Property owners are encouraged to consult with their property managers, contractors and attorneys to determine whether undertaking a CASp inspection is in their best interests.