RECENT CHANGES TO DISABILITY ACCESS LAWS, PART II: DETERMINING WHETHER TO ORDER A CASp INSPECTION

PUBLISHED: 02/15/13

1. Background.

Under California law, persons with disabilities are protected under (i) the California Public Accommodations Law, which entitles individuals with disabilities and other medical conditions to full and free access to buildings and facilities open to the public; and (ii) the Unruh Civil Rights Act, which provides that all persons, regardless of disability, are entitled to full and equal accommodations. Under federal law, the Americans with Disabilities Act (“ADA”) affords similar protections to people with disabilities.

Generally, the state protections provided to disabled persons are comparatively higher than those provided under the ADA and are independent of the ADA. However, violations of the ADA also constitute violations under state law, and to the extent that the ADA is more protective of accessibility rights, the ADA will apply.

To evaluate whether a property is in compliance with all applicable state and federal accessibility laws, an owner or landlord may order an inspection conducted by a certified access specialist (“CASp”) who is accredited by the State of California.

This article serves as a follow-up to the ADA article in our November 2012 newsletter by exploring the potential benefits and drawbacks of obtaining a CASp inspection and providing practical guidance for owners, landlords, and tenants to consider with respect to disability access compliance.

2. Determining Whether to Order a CASp Inspection: Potential Benefits and Drawbacks.

An owner’s decision whether to order a CASp inspection can be a difficult one and requires careful consideration. If an inspection is conducted and no violations are found, the owner has reasonable assurance that its building is in compliance with accessibility laws. This will help deter potential litigants from pursuing claims against the owner and will likely entitle the owner to both a reduction in minimum statutory liability exposure, which was discussed in our previous article, and additional procedural tools in the event that a lawsuit is filed. If violations are found, the CASp inspection report will identify a reasonable time period for the owner to correct such identified violations, hopefully before they lead to a potential lawsuit.

On the other hand, knowledge of uncorrected violations will undermine an owner’s ability to represent and warrant in purchase agreements, leases, and other legal documents that the property is in compliance with all laws, and for commercial leases executed on or after July 1, 2013, will require disclosure to tenants that a CASp inspection has revealed accessibility violations. Additionally, if violations are found that are not timely corrected by the owner, such failure likely will be used as evidence to show the owner’s willful violation of accessibility laws. An owner or landlord who willfully violates accessibility laws will not qualify for a reduction in minimum statutory liability, and the fact-finder will likely award significantly greater damages to plaintiffs. Accordingly, if an owner is not willing and able to correct violations that are identified during the CASp inspection, the owner likely should forego an inspection.

Moreover, for newer improvements and for small businesses, the potential benefits of a CASp inspection might be limited. Specifically, (i) if the building or improvements were approved and passed inspection by the local building department between January 1, 2008, and December 31, 2015, and/or (ii) if a defendant qualifies as a “small business” under state law, the owner who has been sued will likely qualify for the reduction in minimum statutory liability and additional procedural benefits in the event of litigation. It should also be noted that (i) state law expressly provides that an owner’s decision to not have an inspection conducted is inadmissible to prove the owner’s lack of intent to comply with the law; and (ii) because a CASp inspection report is not conclusive or binding upon the Court, the Court might still find accessibility violations even if such report determines the property is in compliance.

3. Practical Advice and Guidance.

- If you are executing a lease:

• If you are a commercial property lessor, you must state in every lease agreement executed on or after July 1, 2013, whether the property being leased 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.

• If you are a commercial tenant executing a lease on or after July 1, 2013, ensure that the required CASp disclosure language is contained in the lease. If the property has not been inspected or has been inspected but found to violate accessibility laws, strongly consider including a provision requiring the landlord to make all necessary accessibility upgrades and an indemnity from the landlord for any liability arising from accessibility claims. Commercial tenants should also consider their federal and state law obligations to provide their employees with an accessible workplace.

• Whether you are a landlord or a tenant, to avoid future disputes, virtually all leases should apportion responsibility between the landlord and tenant for accessibility compliance.

- If you own an existing building:

• Under the California Building Code, all entrances and ground-level exterior doors of commercial buildings (regardless of when built and regardless of whether alterations have been made) must be made accessible to persons with disabilities, unless compliance would create an “unreasonable hardship” and (i) at least one entrance is made accessible to persons with disabilities, or (ii) legal or physical constraints will not allow compliance. Similarly, under the ADA, owners of existing buildings must remove architectural barriers that are structural in nature where such removal is “readily achievable.” The ADA generally defines “readily achievable” as “easily accomplishable and able to be carried out without much difficulty or expense.”

- If you are making renovations, structural repairs, alterations, improvements, or additions:

• Any renovations, structural repairs, alterations, or additions to an existing building shall comply with the requirements then in effect for new buildings (subject to certain modifications and to the exceptions discussed in the bullet points below), including an upgrade to full accessibility for the building entry, path of travel to the area of the alterations, and restrooms serving the altered portion of the building. Similarly, under the ADA, the altered portions of the facility must comply with the ADA, unless full compliance would be “technically infeasible.”

• Exception #1: Minor projects that consist only of HVAC, reroofing, electrical work not involving the placement of switches and receptacles, and cosmetic work do not trigger compliance under state law, unless they affect the “usability” of the building.

• Exception #2: If the value of the improvements or alterations is lower than a certain valuation threshold and compliance would create an “unreasonable hardship” and be “disproportionate” to the cost of the project (meaning that the cost of providing an accessible entrance, path of travel, bathrooms, public phones, and drinking fountains would exceed 20% of the cost of the project without such improvements), then compliance with new building standards is limited to the area of work being performed. In such case, the enforcing agency can require that no more than 20% of the total cost of the improvements be spent on making the property accessible to the extent possible. Accordingly, if possible, keep all tenant improvements and other alteration work under the applicable valuation threshold, which is $139,934 for 2013 and increases every year.

• Note, however, that the obligation to provide access cannot be evaded by performing a series of small alterations served by a single path of travel if those alterations could be performed as a single undertaking. Note also that if an area has been altered without providing an accessible path of travel to that area, and subsequent alterations of that area or other areas on the same path of travel are undertaken within 3 years of the original alteration, the total cost of alterations to the areas on that path of travel for the previous 3-year period shall be used in determining whether the cost of accessibility upgrades are disproportionate.

- If you are an owner or landlord and have ordered a CASp inspection:

• Make sure you receive a written report with the findings. If your property is in compliance with accessibility laws, also obtain a compliance certificate from the CASp and post the same at your property. This will hopefully discourage potential litigants and plaintiff’s attorneys from pursuing potential claims against you. If your property is not in compliance, timely and diligently work to correct the noted violations that are readily achievable and that would not cause an unreasonable hardship, and once corrected, have a follow-up inspection conducted and a compliance certificate issued and posted at your property.

• Even if a CASp inspection for the property has been completed previously, an owner might desire to have another CASp inspection conducted to ensure continuing compliance upon the completion of any significant tenant improvements, alterations, or renovations that potentially affect accessibility. In addition, if previous violations were found that could not be readily corrected without causing unreasonable hardship, periodically reevaluate the identified accessibility barriers to determine whether a more cost-effective solution has arisen.

- If you are faced with litigation regarding disability access, don’t panic and consider taking the following actions:

• Send a copy of the initial demand letter to the California State Bar and the California Commission on Disability Access (“CCDA”). If the plaintiff’s attorney failed to comply with the statutory requirements for demand letters (discussed in our previous article), he or she may face disciplinary action, and this act of reporting will help the State Bar and the CCDA track attorneys and litigants who are acting in bad faith. However, however, lawyers should not threaten the plaintiff’s attorney with State Bar reporting because this might give rise to an ethical violation.

• Put any settlement offers in writing, and make such offers reasonable. The Court may consider any written settlement offers that were rejected in awarding reasonable attorneys’ fees and determining recoverable costs.

• Confer with your counsel regarding whether you qualify for an automatic stay and early evaluation conference. If available, these procedural tools will encourage early resolution of the case (perhaps even prior to filing your responsive pleading to plaintiff’s complaint) and help limit attorneys’ fees and other legal costs (both your fees and costs, as well as any fees and costs recoverable by plaintiff). If you do not qualify, consider requesting a mandatory evaluation conference to encourage earlier resolution of the case.

• Evaluate plaintiff’s alleged violations and determine whether they may be remediated in a timely and cost efficient manner. Before corrections are made, document the alleged violations by taking photos and/or measurements to provide supporting evidence to the Court. Even if violations cannot be corrected within the requisite time period to qualify for a reduction in minimum statutory liability, an owner’s willingness and specific plan to remediate violations might promote settlement of the case, appease the plaintiff, and curry favor with the Court.