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New ADA Reform Law – CA SB 269

curb-ramp-into-traffic-striping-faded

I’m hopeful you’ve heard about the latest California Bill signed into Law this week by Governor Brown. If you haven’t, Gov. Brown signed Senate Bill 269 on May 10th.

The legislation has been called the “Disability access fix-it bill” and promises to “ease penalties for minor violations”. Just as previous bills have tried to accomplish in California, business owners have asked for some extra time to fix ADA issues at their business if they receive a complaint (ADA Lawsuit). Does this bill accomplish this request? What really do business owners get from this new law? After reading the bill and amended laws, I figured I would provide my opinion from the perspective of a Certified Access Specialist (CASp).

For business owners who are excited that this law will allow them 120-days to fix problems after they get sued…you’re going to be disappointed. The minimum damages can be waived if “The inspection predates the filing of the claim”.

Cliff notes

  • There are some “minor” violations that won’t count towards the minimuim damages – there aren’t very many, and they have to be fixed within 15-days.
  • The minimum damages will be waived if, 1) a CASp Report has already been done, 2) the violations are fixed within 120-days from the inspection, and 3) you’ve notified the State and Public of the inspection.
  • Starting in January 2017, CASp’s have to notify the State of the businesses they confidentially inspect.
  • The permit process for ADA Improvement plans will be expeditied…if 1) a CASp Report was done, 2) the business has been sued, and 3) a CASp has reviewed the plans.

If you’re not much a “reader” and want to see the bottom line (literally), click here for my advice.

Source: SB-269 Disability access.(2015-2016)

Remember, I am not an attorney, please hire one to explain this law in detail.

I am a Certified Access Specialist (CASp) and want to shed light on the portions of this new law that pertain to CASp requirements.

My comments will be on this side of the screen.

First of all, the last paragraph of the bill stating its necessity seemed to hit the nail on the head:

Recent data from the California Commission on Disability Access indicates that a handful of highly litigious plaintiffs and attorneys have targeted small businesses in the state, especially those without financial resources or sophistication, with lawsuits alleging violations of construction-related accessibility standards. The lawsuits appear to be motivated by a desire to obtain quick cash settlements with the businesses, rather than to improve access to public accommodations. As a result, small businesses are justifiably anxious about being sued, while disabled consumers are viewed with blame and suspicion, even though they have a right to full and equal access and should be able to expect all public accommodations to comply with the 25-year-old requirements of the Americans with Disabilities Act. It is necessary that this act go into immediate effect to ensure that small businesses have the information and resources they need in order to bring their properties into compliance with construction-related accessibility standards. It is also necessary that this act go into immediate effect to increase compliance with those standards for the benefit of the public, especially disabled consumers who have the right to go about their daily lives without difficulty, discomfort, or embarrassment, and with the basic dignity that comes from having the same access to public accommodations that nondisabled persons enjoy.

The following are excerpts from the explanation of the bill and the corresponding amendments to the applicable laws:

Explanation: “This bill would, for claims filed on and after its effective date, establish a rebuttable presumption, for the purpose of an award of minimum statutory damages, that certain technical violations do not cause a plaintiff to experience difficulty, discomfort, or embarrassment, if specified conditions are met.”

Text to Section 55.56(e) of the Civil Code was amended with a list of ADA violations that, when out of compliance, are not serious enough to cause someone to “experience difficulty, discomfort, or embarrassment”. These include interior signs that are not directional or signs that indicate an accessible element over other elements that are not accessible. The list also includes faded or chipped parking stall paint, as long as it still “reasonably visible.” The “specified conditions are met” statement refers to the requirement that this applies to small businesses and that these “minor violations” be fixed within 15 days of the complaint.

Explanation: “This bill would also exempt a defendant from liability for minimum statutory damages with respect to a structure or area inspected by a certified access specialist for a period of 120 days if specified conditions are met.

This is referring to Section 55.56(g)(3)(a) of the Civil Code that now says, if a business is issued a complaint, and they’ve already had a CASp Inspection completed, and they fix everything listed in the report, within 120 days of the inspection…the minimum statutory damages are waived.

Explanation: “The bill would require a defendant who claims the benefit of this exemption to disclose the date and findings of any certified access specialist (CASp) inspection to the plaintiff.”

In order to get the minimum damages waived, the business must turn over the CASp Report to the plaintiff.

Explanation: “This bill would additionally require the State Architect to publish, and regularly update, easily accessible lists of businesses that file prescribed notices of inspection, and businesses which have been inspected by a CASp on or after January 1, 2017, including the date of the inspection.”

Starting in January 2017, CASp’s will be required to disclose to the State each of their inspections and reports. These will be posted on the State website.

Explanation: “The bill would require the State Architect to develop a process by which a small business may notify the State Architect that a structure or area has had a CASp inspection and to develop a form for businesses to notify the public that the business has obtained a CASp inspection.”

DSA will be providing a way for small businesses to notify the State that a portion of their business has been inspected. They will also be providing a “form” that will need to be posted in public at the business.

Explanation: “This bill would additionally require the commission to provide a link on its Internet Web site to the Internet Web site of the Division of the State Architect’s CASp certification program, and make the commission’s educational materials and information available to other state agencies and local building departments.”

Explanation: “The bill would require a local agency to notify an applicant that approval of a permit does not signify that the applicant has complied with that act.”

Portions of the revised laws are directed to cities and counties in the State. They are required to provide materials to businesses that explain the requirement to be accessible. They are also required to tell a business getting a building permit, that the permit doesn’t guarantee that they are in compliance.

Explanation: “The bill would also require local agencies to expedite review of projects for which the applicant provides a copy of a disability access certificate, demonstrates that the project is necessary to address an alleged violation of a construction-related access standard or a violation noted in a CASp report, and, if project plans are necessary for approval, has had a CASp review the project plans for compliance with all applicable construction-related accessibility standards.”

When corrections are needed at a business, many times a building permit is required. This law adds some language to require local agencies to expedite the permit process for applicants that meet three prerequisites, 1) provide a copy of the blue CASp certificate (which would mean you’ve completed a CASp Report, 2) demonstrate that the permit is for correcting violations listed in a complaint or CASp Report, and 3) if you have plans for the permit, you’ve had a CASp review them for compliance.

Now for the actual changes to the laws…

Section 55.53 of the Civil Code is amended to read:

55.53. (a)(4) The CASp shall file, within 10 days of inspecting a business pursuant to subparagraph (A) of paragraph (3) of subdivision (g) of Section 55.56, a notice with the State Architect for listing on the State Architect’s Internet Web site, as provided by subdivision (d) of Section 4459.7 of the Government Code, indicating that the CASp has inspected the business, the name and address of the business, the date of the filing, the date of the inspection of the business, the name and license number of the CASp, and a description of the structure or area inspected by the CASp.

If a business is looking to enjoy the “fix it” benefits in this law, The CASp preparing the report for their business must file specific details of the report and business with the State Architect’s office. In the past, there was never a requirement to send any information to the State.

(5) The CASp shall post the notice described in paragraph (4), in a form prescribed by the State Architect, in a conspicuous location within five feet of all public entrances to the building on the date of the inspection and instruct the business to keep it in place until the earlier of either of the following:

(A) One hundred twenty days after the date of the inspection.

(B) The date when all of the construction-related violations in the structure or area inspected by the CASp are corrected.

Not only do the CASp’s have to send information to the State, a public notice of the inspection has to be posted at all public entrances to the business. The CASp has to post the public notice on the date of the inspection, but has 10 days to notice the State.

Section 55.56 of the Civil Code is amended to read:

55.56. (e) (1) The following technical violations are presumed to not cause a person difficulty, discomfort, or embarrassment for the purpose of an award of minimum statutory damages in a construction-related accessibility claim, as set forth in subdivision (c), where the defendant is a small business, as described by subparagraph (B) of paragraph (2) of subdivision (g), the defendant has corrected, within 15 days of the service of a summons and complaint asserting a construction-related accessibility claim or receipt of a written notice, whichever is earlier, all of the technical violations that are the basis of the claim, and the claim is based on one or more of the following violations:

Here’s the section that explains how some minor violations won’t apply to the minimum statutory damages. In order for this to apply, the business has to be a “small business”, all of the minor violations have to be fixed in 15 days, and the minor violation has to be one of the following:

(A) Interior signs, other than directional signs or signs that identify the location of accessible elements, facilities, or features, when not all such elements, facilities, or features are accessible.

Directional signs will typically have arrows or information indicating where an accessible feature is located. Signs that indicate an accessible element when others are not accessible, would include the ISA symbol on a restoom door. The only other required signs that would be considered minor violations could be the tactile signs that are required when a sign is designating a permanent use of a room or space. Thos might be considered minor violations that don’t cause difficulty to a person using a wheelchair, but would cause difficulty to a visually impaired person looking for a room.

(B) The lack of exterior signs, other than parking signs and directional signs, including signs that indicate the location of accessible pathways or entrance and exit doors when not all pathways, entrance and exit doors are accessible.

There aren’t many signs required in exterior spaces that are not parking or directional signs. The “tow-away” sign may be the only other exterior sign that could be considered a minor violation. Those signs are custom for the business location and take about 15 days to purchase as it is.

(C) The order in which parking signs are placed or the exact location or wording of parking signs, provided that the parking signs are clearly visible and indicate the location of accessible parking and van-accessible parking.

There are only a couple of specific requirements for the order in which parking signs have to be placed that would fall under this exception; the hieght to the bottom of the sign and the location in front of the stall. The only “wording” required in the code for parking signs is “MIN FINE $250” and “VAN ACCESSIBLE”.

(D) The color of parking signs, provided that the color of the background contrasts with the color of the information on the sign.

There isn’t actually a requirement for the color of parking signs. The only mention of color in the codes is for the pavement markings.

(E) The color of parking lot striping, provided that it exists and provides sufficient contrast with the surface upon which it is applied to be reasonably visible.

The color of paint markings at parking stalls is the blue border around the access aisle, and the blue in the 36 inch square ISA at the stall. So if your contractor used pink paint, you’ll have 15 days to have a better contractor paint it over with blue!

(F) Faded, chipped, damaged, or deteriorated paint in otherwise fully compliant parking spaces and passenger access aisles in parking lots, provided that it indicates the required dimensions of a parking space or access aisle in a manner that is reasonably visible.

This sounds good for businesses who just painted their stalls a few years ago, and have faded paint. The problem is going to be who decides what “reasonably visible” means.

(G) The presence or condition of detectable warning surfaces on ramps, except where the ramp is part of a pedestrian path of travel that intersects with a vehicular lane or other hazardous area.

The ONLY place detecable warnings are required on “ramps” is where the ramp is part of a pedestrian path of travel that cross a vehicular way or hazard!

(f) Statutory damages may be assessed pursuant to subdivision (a) based on each particular occasion that the plaintiff was denied full and equal access, and not upon the number of violations of construction-related accessibility standards identified at the place of public accommodation where the denial of full and equal access occurred.

This makes it more clear that the minimum statutory damages are NOT $4,000 for each non-compliant barrier on the site, but for each occasion (vist to the site).

(g)(1) Notwithstanding any other law, a defendant’s liability for statutory damages in a construction-related accessibility claim against a place of public accommodation is reduced to a minimum of one thousand dollars ($1,000) for each offense if the defendant demonstrates that it has corrected all construction-related violations that are the basis of a claim within 60 days of being served with the complaint, and the defendant demonstrates any of the following:

Great, now the term “each offense” was added to the text…why not use “violation” or “occasion” that was used in (f). Either way, the minimum damages can be lowered from $4,000 to $1,000 if everything was fixed within 60-days and falls under on of the following criteria:

(A) The structure or area of the alleged violation was determined to be “CASp-inspected” or “meets applicable standards” and, to the best of the defendant’s knowledge, there were no modifications or alterations that impacted compliance with construction-related accessibility standards with respect to the plaintiff’s claim that were completed or commenced between the date of that determination and the particular occasion on which the plaintiff was allegedly denied full and equal access.

The barrier listed in the complaint was already inspected by a CASp and hasn’t been touched since.

(B) The structure or area of the alleged violation was the subject of an inspection report indicating “CASp determination pending” or “Inspected by a CASp,” and the defendant has either implemented reasonable measures to correct the alleged violation before the particular occasion on which the plaintiff was allegedly denied full and equal access, or the defendant was in the process of correcting the alleged violation within a reasonable time and manner before the particular occasion on which the plaintiff was allegedly denied full and equal access.

The barrier was part of a CASp Report and was fixed or is in the process of being fixed.

(C) For a claim alleging a construction-related accessibility violation filed before January 1, 2018, the structure or area of the alleged violation was a new construction or an improvement that was approved by, and passed inspection by, the local building department permit and inspection process on or after January 1, 2008, and before January 1, 2016, and, to the best of the defendant’s knowledge, there were no modifications or alterations that impacted compliance with respect to the plaintiff’s claim that were completed or commenced between the completion date of the new construction or improvement and the particular occasion on which the plaintiff was allegedly denied full and equal access.

If the barrier was new construction as part of a permit between 2008 and 2016.

(D) The structure or area of the alleged violation was new construction or an improvement that was approved by, and passed inspection by, a local building department official who is a certified access specialist, and, to the best of the defendant’s knowledge, there were no modifications or alterations that affected compliance with respect to the plaintiff’s claim that were completed or commenced between the completion date of the new construction or improvement and the particular occasion on which the plaintiff was allegedly denied full and equal access.

If the barrier was new construction inspected and approved by a Building Official CASp.

(2) Notwithstanding any other law, a defendant’s liability for statutory damages in a construction-related accessibility claim against a place of public accommodation is reduced to a minimum of two thousand dollars ($2,000) for each offense if the defendant demonstrates both of the following:

This section allows for the minimum damages to be reduced from $4,000 to $2,000 for each offense…if BOTH of the following apply.

(A) The defendant has corrected all construction-related violations that are the basis of a claim within 30 days of being served with the complaint.

All of the violations are fixed within 30 days.

(B) The defendant is a small business that has employed 25 or fewer employees on average over the past three years, or for the years it has been in existence if less than three years, as evidenced by wage report forms filed with the Economic Development Department, and has average annual gross receipts of less than three million five hundred thousand dollars ($3,500,000) over the previous three years, or for the years it has been in existence if less than three years, as evidenced by federal or state income tax returns. The average annual gross receipts dollar amount shall be adjusted biannually by the Department of General Services for changes in the California Consumer Price Index for All Urban Consumers, as compiled by the Department of Industrial Relations. The Department of General Services shall post that adjusted amount on its Internet Web site.

The business is technically a “small business”.

(3) (A) Notwithstanding any other law, a defendant shall not be liable for minimum statutory damages in a construction-related accessibility claim, with respect to a violation noted in a report by a certified access specialist (CASp), for a period of 120 days following the date of the inspection if the defendant demonstrates compliance with each of the following:

Here’s where the 120-days comes into play. First of all, the 120 days starts from the date of the CASp inpsection. No inspection, no benefit. EACH of the following have to be done to get the benefit of the 120-days:

(i) The defendant is a business that, as of the date of inspection, has employed 50 or fewer employees on average over the past three years, or for the years it has been in existence if less than three years, as evidenced by wage report forms filed with the Employment Development Department.

Business can’t have more than 50 employees.

(ii) The structure or area of the alleged violation was the subject of an inspection report indicating “CASp determination pending” or “Inspected by a CASp.”

The area of the violation was a part of a CASp Inspection and Report.

(iii) The inspection predates the filing of the claim by, or receipt of a demand letter from, the plaintiff regarding the alleged violation of a construction-related accessibility standard, and the defendant was not on notice of the alleged violation prior to the CASp inspection.

The CASp Inspection was done BEFORE the filing of the claim or demand letter. This may surprise businesses who are excited to wait around to be sued, then get 120-days to fix their problems and not have to pay damages! Doesn’t work that way.

(iv) The defendant has corrected, within 120 days of the date of the inspection, all construction-related violations in the structure or area inspected by the CASp that are noted in the CASp report that are the basis of the claim.

The violations have to actually be fixed within the 120 days.

(B) Notwithstanding any other law, a defendant who claims the benefit of the reduction of, or protection from liability for, minimum statutory damages under this subdivision shall disclose the date and findings of any CASp inspection to a plaintiff if relevant to a claim or defense in an action.

To get the benefit of the 120-days, the business will need to prove that the alledged violation was in fact listed in the CASp Report.

(4) A defendant may claim the protection from liability for minimum statutory damages under paragraph (3) only once for each structure or area inspected by a CASp, unless the inspected structure or area has undergone modifications or alterations that affect the compliance with construction-related accessibility standards of those structures or areas after the date of the last inspection, and the defendant obtains an additional CASp inspection within 30 days of final approval by the building department or certificate of occupancy, as appropriate, regarding the modification or alterations.

It sounds like you only get to use the 120-days “fix-it card” once.

(5) If the defendant has failed to correct, within 120 days of the date of the inspection, all construction-related violations in the structure or area inspected by the CASp that are noted in the CASp report, the defendant shall not receive any protection from liability for minimum statutory damages pursuant to paragraph (3), unless a building permit is required for the repairs which cannot reasonably be completed by the defendant within 120 days and the defendant is in the process of correcting the violations noted in the CASp report, as evidenced by having, at least, an active building permit necessary for the repairs to correct the violation that was noted, but not corrected, in the CASp report and all of the repairs are completed within 180 days of the date of the inspection.

If the corrections required need a building permit, the 120-days can be extended to 180-days if a premit is in place.

(6) This subdivision shall not be applicable to intentional violations.

Good thing.

(8) This subdivision shall apply only to claims filed on or after the effective date of Chapter 383 of the Statutes of 2012, except for paragraphs (3), (4), and (5), which shall apply only to claims filed on or after the effective date of Senate Bill 269 of the 2015–16 Regular Session. Nothing in this subdivision is intended to affect a complaint filed before those dates, as applicable.

These benefits to reduce the damages aren’t going to apply to complaints filed before the law was signed.

(j) For purposes of this section, the “structure or area inspected” means one of the following: the interior of the premises, the exterior of the premises, or both the interior and exterior.

This is new language that will need to be included in the CASp Reports to be clear which “area” was inspected. There are only three choices: Inside, Outside, or Both.

Section 4459.7 of the Government Code is amended to read:

4459.7. (a) (2) The State Architect shall publish and regularly update on its Internet Web site easily accessible lists of all of the following:
(A) Businesses that have obtained a CASp inspection and have filed, or a CASp has filed on their behalf, a notice pursuant to paragraph (4) of subdivision (a) of Section 55.53 of the Civil Code.
(B) Businesses which have been inspected by a certified access specialist on or after January 1, 2017, including the date of the inspection.

The State is now going to be posting which businesses have been inspected and have CASp Reports.

(d) By January 1, 2017, the State Architect shall develop a process by which a certified access specialist (CASp) may notify the State Architect that a structure or area on the premises of a business has been inspected by a CASp and to notify the public that the business has a “CASp determination pending,” or has been “Inspected by a CASp,” as provided by paragraph (3) of subdivision (g) of Section 55.56 of the Civil Code, which shall include the name and address of the business, the date of the notification, the date of the inspection of the business, the name and license number of the CASp, and a description of the structure or area inspected by a CASp.

Starting in January 2017, the State will have a process for CASp’s to notify them which businesses have been inspected.

(e) By January 1, 2017, the State Architect shall develop a form for a business to notify the public that the business has obtained a CASp inspection pursuant to paragraph (3) of subdivision (g) of Section 55.56 of the Civil Code, which shall include the date of the notification, the date of the inspection, and a description of the structure or area inspected by a CASp.

Starting in January 2017, the State will be providing a form to be used for CASp’s to public post on businesses with inspections.

Article 4 (commencing with Section 65946) is added to Chapter 4.5 of Division 1 of Title 7 of the Government Code, to read:

Article 4. Expedited Review

65946. (b) A local agency shall expedite review of a project application if the project applicant meets all of the following conditions:

Here is the language that requires local agencies provide an expeditied review of permit applications. In order to benefit from the expedited review, the applicant must do ALL of the following:

(1) The applicant provides a copy of a disability access inspection certificate, provided by a CASp pursuant to subdivision (e) of Section 55.53 of the Civil Code, pertaining to the site of the proposed project.

A copy of the blue CASp Certificate must be provided. This proves that a CASp Report has been done for the facility.

(2) The applicant demonstrates that the proposed project is necessary to address either an alleged violation of a construction-related accessibility standard or a violation noted in a written inspection report.

Proof has to be given that the reason the applicant is asking for a permit is because they have been issued a legal complaint. The expedited review will not apply to businesses trying to fix barriers within 120-days before they get sued.

(3) If project plans are necessary for the approval of a project, the applicant has had a CASp review the project plans for compliance with all applicable construction-related accessibility standards.

The plans submitted for the permit must be reviewed by a CASp priot to being submitted to the local agency.

My advice:

  1. Get a lawyer
  2. Get a CASp Report
  3. Fix the barriers at your business
  4. Don’t wait to get sued!

If you skipped over the good part to see my advice, click here to go back.

David HornNew ADA Reform Law – CA SB 269
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Restroom Signage and the ADA

Restrooms with non-compliant pictogramCircles, Triangles, Men’s, Women’s…what’s the deal with ADA restroom signage? The issue regarding Restroom sign requirements recently became the topic of discussion with a group of CASp experts. We’ve all seen bad Restroom signs and we’ve all seen (what we think) is good Restroom signage. Do you wonder how often restroom signage has been referred to in recent lawsuits?…Once. That’s right, for all of the complaints we’ve reviewed in the past 6 months, we’ve only seen it mentioned once.

Regardless of that statistic, the ADA and CBC include restroom signage requirements and must be included at facilities. Based on a discussion with CASp’s there are a couple of ways to look at the requirement for restroom signs vs. the recommended way of signing restroom. When we look at “requirements” we need to look at the ADA law and guidelines as well as the California Building Code.

David HornRestroom Signage and the ADA
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Diagonal Parking Dimensions

Diagonal striped accessible parking stall.In order for a parking stall to be considered “accessible”, it must meet a few specific requirements. The main requirements include the length, width, surface slope, striping, width of access aisle and signage. No matter the configuration of the stall, the angle of the stall in relation to the drive aisle, all of the same requirements must be met. Being compliant is fairly straightforward (pun intended) if the stall are at 90-degrees. When the stalls are provided at an angle, we call them “diagonal stalls”, the minimum requirements of dimensions get very hard to meet.

David HornDiagonal Parking Dimensions
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Striping an Accessible Path in the Parking Lot

Striped path across a parking lot.

The ADA requires that accessible paths connect each accessible facility on a site. In order for a path to be “accessible” it must meet a few specific criteria. It can’t be too steep side-to-side or in the direction of travel. It must be a certain width. The surface must be flat and can’t be uneven. Neither the ADA nor the current CBC includes any language requiring a striped path. When we look at the requirements for Parking Stalls, there are requirements for markings. The color of markings, dimensions, width between hatching is all listed. Nothing in the code discusses marking for accessible
paths.

This article is meant to add some clarity to an issue that is not a “Black & White” ADA issue. There are a few ways to interpret this issue, and we don’t have a simple ‘yes’ or ‘no’ opinion. Two sides are discussed below with opinions we’ve heard from others or provided ourselves.

David HornStriping an Accessible Path in the Parking Lot
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Ramp Landings with Doors

Exterior ramps are sometimes a necessity to achieve an accessible path from your site to your facility doors.  In this case, when we use the term “ramp” we are referring to a sloped path exceeding 1:20 or 5% of running slope (Section 405).  These ramps require handrails, a maximum running slope of 1:12 or 8.3%, and landings at both the top and bottom of the ramp run.  In many situations, these ramps are needed to elevate the accessible path to an exterior door to gain entrance or allow an exit.  We’ve dealt with this situation a few times and wanted to add some clarity to the requirements of the ramp landings when you include a doorway.

David HornRamp Landings with Doors
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Restroom Accessories

One of the most often reference barrier in recent ADA lawsuits is the location of restroom accessories.  The term ‘accessories’ in this context is used for the (mostly) wall-mounted elements found in restrooms such as the dispensers for soap, paper towels, toilet seat covers, etc.  The lawsuits refer to these accessories being beyond the required reach range and therefore, a ‘barrier to accessibility.’  The issue is relevant.  I recently visited a large entertainment venue in the Central Valley and while using the Men’s restroom with my son, he pointed out how high all of the wall-mounted items were.  The basic facilities of the restroom would have been nowhere near within reach for an individual using a wheelchair.

David HornRestroom Accessories
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Getting a CASp Report

Background of CASp Reports

casp-report-level-296As more lawsuits hit small businesses for minor, but very real, accessibility barriers, the State of California created a certification process for experts in the ADA law to help businesses. The Certified Access Specialist (CASp) program is administered by the Division of the State Architect (DSA). Experts in the ADA field; Architects, Civil Engineers, Building Inspectors, and Contractors, who pass a series of detailed exams can become CASp’s. The purpose of the certification is to provide business owners with experts who can help them decipher the ADA requirements.

Solution provided by California

The fact that the ADA law, and building codes that pertain to accessibility, are so complicated and detailed, is a reason that many businesses cannot keep up with their responsibility. Enter the 184 (as of March 2015) CASp’s that provide inspection services to businesses. Now businesses have someone they can rely on to help them become more accessible.

Method of CASp Inspection and Report

The State guidelines for the CASp Reports provided by the inspectors is currently fairly vague. In order for a Report to be called a “CASp Report” it must meet specific requirements laid out in the legislation. The best practices for CASp’s providing services to businesses is constantly being revised as more defense attorneys are required to use the reports. For a business looking to become more accessible and reduce their risk of dealing with an ADA lawsuit, the following steps are advisable:

    1. Contact an Attorney that has experience defending businesses in ADA Lawsuits.
    2. The Attorney will engage a CASp inspector to prepare a full report of the facility.
    3. The CASp will arrange a time that suites the business owner to conduct the site inspection.
    4. The CASp inspector will bring their measuring tools to the facility and conduct a site inspection.
    5. The inspection, if done correctly, will take approximately an hour for a business that includes a parking lot and a restroom. Restaurants, large parking lots, businesses with multiple restrooms, sites with elevators will take much more time.
    6. The CASp inspector is required to measure each element and space that is required in the ADA to be accessible. The required items that must be inspected for each element is very lengthy. For example, a single Grab Bar next to a toilet has 15 lines of code that must be reviewed.
    7. Many CASp inspectors take photos of the site and accessible items for record keeping and reference purposes.
    8. Once the site inspection is done, the inspector will take their measurements and notes back to their office and compile the data into a report.
    9. All CASp Reports must include specific items; information about the facility, contact information for the CASp, an explanation about the CASp legislation, a disclosure to the property owner, and the status of the report (CASp Inspected or Meets Applicable Standards). The fundamental part of the Report is to note which spaces and elements at the Facility are not compliant with the current ADA law and California Building Code. Some CASp Reports show pictures of the barrier with just a note stating what is wrong, others list the ADA code explicitly stating what the law requires.
    10. The Report must also include a plan that lists which barriers will be removed and corrected. CASp’s are urged not to provide that plan to the business owner because there are a number of variables that go into which barriers the business can correct. The best practice for the Barrier Removal Plan is for the CASp to provide a clear list of barriers, described in the report, with space for the owner to note if correcting the issue is readily achievable for them, and if so, provide a reasonable timeline when it will be corrected.
    11. Business owners are advised to sit back down with their attorney to discuss completing this Barrier Removal Plan. The best ADA attorneys will tell businesses owners that this Plan is the golden ticket provide by the CASp Report.
    12. Once the Barrier Removal Plan is completed and attached back to the CASp Report, the Report meets the requirements set by the State, and the owner can be considered a qualified defendant.
    13. A blue Access inspected certificate can be provided by the CASp once the report is final. Some businesses erroneously covet the blue certificate and believe it will bring them ultimate protection. Not so. Attorneys that have been through these lawsuits advise businesses to not post the certificate until actual improvements to the facility have been made. A window certificate that draws attention to a facility that has obvious, simple, barriers is worthless.

Benefits of a CASp Report

In our experience, this process of obtaining a CASp Report for your business is straightforward and provides a wealth of valuable information to the business owner. The best CASp Inspectors and ADA Attorneys will be those who spend the time to review your report with you and make sure you understand your responsibility and plan moving forward.

Find a CASp

David HornGetting a CASp Report
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Top 10 Myths of ADA Compliance

Like many regulations, the ADA comes with its own host of myths and misinformation that spread faster than a summer wildfire. The following are the 10 most common myths we hear every day while dealing with business owners, and the truth behind them to help you avoid being sued.

#1) I’m Grandfathered In

Grandfathering has a lot of precedence with many regulations, such as smog requirements for vehicles, but with the ADA, there’s no way for this to work. It has to do with being accessible to everyone, so grandfathering prevents that.

Just because the business was started a long time ago or is in a building that was built in 1920, all businesses must adhere to the current Federal ADA. In the 2010 ADA the term “safe haven” is included to allow businesses that were compliant to the 1990 ADA to not have to update to ONLY the items updated in 2010. This list of applicable items is very short. Otherwise, all businesses must stay compliant with the current ADA.

#2) I don’t have to worry until I do construction

This is really the other side of the same coin with regard to grandfathering above. If you are open to the public, the reality is that you have to worry about accessibility.

Undergoing new, or updating construction will actually trigger additional review of ADA items affected by the construction. But all barriers to accessibility that exist now, must be handled now.

#3) My facility was built with a permit and should be fine

“Should be”, yes, “Actually is probably not”. You can’t use a recent permit or sign-off by a local inspector as protection against ADA barriers simply because they’re not all ADA experts. They should be, but the reality is that they aren’t. They miss things just like everyone else.

Additionally, many ADA lawsuits include items that become barriers post-construction, like merchandise in the aisles, and faded parking lot stripes.

#4) I’m not open to the public

If you’re in the business of selling something to the public, you’re open to the public. True, there are many businesses that make house calls, or are mobile in nature. They will not have the number of ADA issues to work through that most others do. But, if a business interacts with the public to conduct their work, they need to review their facility and policies.

#5) I can fix issues once I get sued

This is the one myth that feeds the “Frivolous Lawsuit” business. Unfortunately, most every “frivolous lawsuit” filed for ADA issues is done for financial gain and not improving accessibility. Every day that you are open to the public, you must be accessible. Waiting for a lawsuit to make any changes will cost you dearly. After you are sued, you’ll most likely pay a settlement to avoid going to court, pay attorney’s fees, and not be any closer to reducing your liability for another lawsuit.

#6) I’m a tenant, so I’m not liable for exterior items

The nature of the ADA is directed to businesses, not property owners. All ADA lawsuits are served to the operating business (tenant) and usually include ADA requirements for exterior paths and parking. The fact that you lease a space, only allows the lawsuit to include the property owner as well!

#7) I’ve already been sued, so I’m clear

There is no secret list that all “frivolous lawsuit” plaintiffs look at before they head out and avoid who’s already been sued. If you’ve been sued, paid a settlement, are lucky to still in business, and haven’t fixed your ADA issues, you’re still a target.

#8) There has never been a disabled person in my store

It’s most likely because you’re not accessible to them in the first place. The disabled community is not dumb. If they want to buy your kumquats, but they see a step at your door, or a small parking stall, they’re going to take their money elsewhere.

#9) I’ll just help a disabled person get around barriers

The ADA law is not one line that reads, “All business owners must provide a concierge to any disabled customer.” The point of the ADA is for our businesses to be accessible to all Americans to allow for independence and equality. It’s great to be polite and ask if you can help, but you can’t hide behind that as your compliance.

#10) There is nothing I can do to reduce my risk

A vast number of ADA lawsuit items can be fixed for under $500! Many little issues such as adding signs, moving the mirror down an inch, or changing the door hardware are simple to fix. Each of the little items, if they’re not compliant, can cost you $4000 EACH in an ADA lawsuit.

shawnTop 10 Myths of ADA Compliance
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