Ensuring Compliance How can business owners ensure compliance and reduce chances of
getting sued? One of the best ways to avoid being sued under the disability
access laws is to ensure that buildings are in compliance in California, SB
1608 provides a number of ways to help business owners: Businesses should hire
a CASp.
A certified access specialist (CASp) is a person business owners can be
assured has been tested and certified by the state as an expert in disability
access laws. SB 1608 sets up a process whereby business owners can
voluntarily hire a CASp to inspect their buildings to ensure compliance with
disability access standards and obtain an inspection report as proof they did
so. Businesses should begin the process of obtaining an inspection
as soon as possible. Either building owners
or tenants can order a CASp inspection. (Either can be sued for non-compliance.) If
you are a tenant, you may want to discuss with the building owner whether a
CASp inspection was already completed or if there are plans for one. Businesses should
ensure when they hire a CASp that the CASp provides an inspection report
detailing what was inspected. SB 1608 requires the CASp to notify you of
the right to an inspection report. Without one, business owners will not have
proof of the inspection. If the CASp determines
that corrections are needed in order for the site to be approved, the
business owner is entitled to a written report identifying changes that need
to be made and recommended reasonable timeframes for fixes. Business owners should
keep the inspection report confidential and in a safe place. If you are ever
sued, you must have a CASp inspection report in order to be eligible to
request a 90-day stay of the lawsuit and an Early Evaluation Conference (more
about this on the next page). If you do not have a report, you will be barred
from this benefit. Businesses should
request and post a CASp window sign. Businesses whose structures have been
approved by CASps will be able to request a window sign signifying they have
been CASp-inspected. The window sign will send the message that the business
has taken proactive steps to comply with the disability access laws and is
not an easy target for lawyers seeking to earn quick money. Improved expertise in
new construction and building inspections. For the first time, there will be
minimum continuing education requirements for building inspectors and
architects on disability access laws, to help reduce the problem of new
construction failing to comply. Moreover, by July 2010, local building
inspection offices will be required to have at least one CASp on staff,
available to provide consultation. Eventually all permitting and plan checks
must be CASp-inspected. New state disability
access commission part of the solution. SB 1608 created a new California Commission
on Disability Access (CCDA), which will be a 17-member state advisory
commission made up of legislative and gubernatorial appointees from both the
disability and business communities. The commission will be assigned the task
of evaluating and providing recommendations on further disability access
issues having an impact on the disability and business communities. Resolving
Lawsuits Early If a business owner does get sued, how does SB 1608 help to
encourage early resolution of the lawsuit? Even when businesses have reduced their
chances of a lawsuit by hiring a CASp to ensure their building is in
compliance and posting their CASp sign, unfortunately, there is never a 100
percent guarantee of not getting sued. However, SB 1608 gives CASp-approved
businesses some tools for helping to resolve unnecessary litigation and
encouraging early resolution. 90-day stay of the
lawsuit and early evaluation conference. Businesses that have been
CASp-inspected before being sued — and only those businesses —
are entitled to request a 90-day stay of the lawsuit and an Early Evaluation
Conference (EEC). A stay is a temporary
halting of all litigation. A major benefit of halting litigation temporarily is
that attorneys will not be able to engage in motions or discovery and other
activities that incur expensive attorneys’ fees. The EEC is a court-run
conference between the parties, at which the parties will have the
opportunity to explore whether the lawsuit can be settled. For example, if the
lawsuit is based on an alleged violation that would be easy for the business
to fix, and the business is willing to resolve the issue quickly, the parties
will be able to discuss whether further litigation is necessary. How to request the
stay and EEC. A defendant must file a request form with the court within 30
days of being sued. The appropriate form is required to be delivered with the
lawsuit, but all necessary forms and instructions also will be made available
on the state’s court self-help website later this year. The court will
grant the stay and EEC upon receipt of the request and schedule a time for
the conference, within 50 days from the filing of the request. The plaintiff
and defendant will be directed to appear in person at the time of the
conference. Defendant must provide
the CASp inspection report. No later than 15 days before the EEC, the
defendant absolutely must file with the court and provide the plaintiff with
a copy of the CASp inspection report. If the defendant does not do so, the
court may lift the stay absent a showing of good cause. The confidentiality
of the report must be maintained until the conclusion of the lawsuit. Reducing
Unwarranted Lawsuits What elements of SB 1608 help to reduce unwarranted ADA lawsuit
practices? SB 1608 also established important reforms that will help to
reduce inappropriate attorney monetary demands and provide significant
clarifications in the law for both plaintiffs and defendants concerning
recoverable damages and settlement offers: Attorneys who issue
demands for money must also provide the business owner with an advisory
statement. SB 1608 requires that written demands for money by attorneys
be accompanied by an explanation of the legal rights of the building
owner/tenant, including the ability to contact their insurance company as
well as an attorney experienced with ADA lawsuits. In addition, the advisory
will explain that receipt of a demand for money does not necessarily mean the
business is liable. Attorneys who fail to comply may be reported to the State
Bar. The advisory statement will be available in multiple languages on the
state court website. Multiple
damages may not be recovered at a single facility. SB 1608 will help to ensure that
damages may be claimed only when a plaintiff personally encountered a
violation or was deterred from gaining access on a particular occasion. SB
1608 clarifies that a denial of full and equal access constitutes one
violation per distinct facility for purposes of damages. Damages may not be
recovered for each and every single offense that may exist at the particular
facility. In addition, the plaintiff may not recover for violations that may
have existed at a facility but which never caused harm or injury to the
plaintiff, either in the form of an encounter or deterrence on a particular
occasion. Parties will be encouraged to consider reasonable
settlement offers. SB 1608 clarifies that a court can consider, among other relevant
factors, reasonable written settlement offers made and rejected by either
party in determining the amount of an attorneys’ fees award at the
conclusion of a case. Click
Here for a Flow Chart Illustrating CASp Inspection Litigation Advantages
“Reproduced
with permission from the California Chamber of Commerce, which provides more
information at www.calchamber.com/ada |
