By Servando R. Sandoval
Pahl & McCay
225 West Santa Clara Street
Suite 1500
San Jose, California 95113
408/286-5100 (phone); 408/286-5722 (fax)
ssandoval@pahl-mccay.com
Please understand that the information discussed in this Article is general in nature and is not intended to be legal advice. It is intended to assist owners and managers in understanding this issue area, but it may not apply to the specific fact circumstances or business situations of all owners and managers. You may need to consult applicable state and local laws. For specific legal advice, consult your attorney.
New legislation, which took effect on January 1, 2009, provides property owners certain incentives to voluntarily come into compliance with existing federal and state law relating to public access. Existing law prohibits any person, firm, or corporation from denying or interfering with a disabled person’s admittance to or enjoyment of public facilities, or from otherwise interfering with the rights of an individual with a disability. Senate Bill 1608 authorizes the California Architects Board to implement a program to create a program for voluntary certification of Certified Access Specialist (“CASp”) with respect to access to buildings for persons with disabilities.
As it pertains to owners of real property, Senate Bill 1608 includes additional provisions to the California Civil Code which will be known as the Construction-Related Accessibility Standards Act. Under these new sections to the Civil Code, property owners may obtain a written inspection report from a CASp, indicating that their particular property has been determined to meet all applicable construction-related accessibility standards.[1] Commencing on July 1, 2010, local agencies will be required to employ or retain at least one building inspector who is duly designated as a CASp for purposes of providing consultation to permit applicants and members of the public with respect to accessibility standards. Thereafter, as of July 1, 2014, local agencies will be required to employ or retain a sufficient number of building inspectors who are duly certified for purposes of permitting and plan check services. Property owners, however, can also retain a private individual who is duly certified as a CASp to take advantage of the new law.
Upon the inspection and certification by a CASp that the property meets all applicable construction-related accessibility standards, the CASp can issue a disability access inspection certificate, which would be made available by the State Architect, for posting on the premises. The disability access inspection certificate could be posted on the premises so long as the property is not thereafter modified or altered in a way that may impact compliance with the construction-related accessibility standards.
The benefit of obtaining a disability access inspection certificate for your property provides the property owner many benefits. For instance, a property owner who has met the requirements of the new law and who is served with a summons and complaint asserting a construction-related accessibility claim, may file a request for a court stay and early evaluation conference in the proceedings of that claim prior to or simultaneous with the response to the Complaint. If a timely request for stay and early evaluation conference is filed, the period for filing a response to the Complaint is tolled until the stay is lifted by the Court. Additionally, an attorney who files a complaint that includes a construction-related accessibility claim is required to serve on the defendant a specified notice of the new law along with an approved application form for stay. These requirements apply to all new lawsuits filed after January 1, 2009. Also, although these provisions of the new law apply only to lawsuits filed by an attorney, if a complaint was filed by a plaintiff in propia person and an attorney is thereafter substituted into the case, a qualified defendant who is served with a Notice of Substitution of Counsel will have 30 days from the date the Notice of Substitution of Counsel is served to file an application for a stay and an early evaluation conference as discussed above.
Once a qualified defendant files an application for stay and early evaluation conference, the court is required to immediately issue an order that: (1) Grants a 90-day stay of the proceedings with respect to the construction-related accessibility claim; (2) Schedules a mandatory early evaluation conference as soon as possible, no later than 50 days after the date of the Order and no earlier than 21 days after the filing of the request; (3) Directs the parties to appear in person at the time set for the conference; (4) Directs the defendant to file with the court under seal and serve on the plaintiff a copy of any relevant CASp inspection report at least 15 days before the date of the conference (the report is subject to a protective court order maintaining the confidentiality of the report); and (5) Directs the plaintiff to file with the court and serve on the defendant at least 15 days before the date of the conference a statement that includes: an itemized list of specific conditions on the property that are the basis of the claimed violations of construction-related accessibility standards in the plaintiff's complaint, the amount of damages claimed, the amount of attorney's fees and costs incurred to date, and any demand for settlement of the case in its entirety.
The new law also limits statutory damages by a plaintiff in a construction-related accessibility claim to circumstances where the plaintiff was denied full and equal access to the place of public accommodation on a particular occasion. Newly added Section 55.56 of the Civil Code provides that a plaintiff is denied full and equal access only if the plaintiff personally encountered the violation on a particular occasion, or the plaintiff was deterred from accessing a place of public accommodation on a particular occasion. Statutory damages are also limited in that such damages may only be assessed based on each particular occasion the plaintiff was denied full and equal access, and not upon the number of violations identified. Finally, Courts are allowed to consider, along with other relevant information, written settlement offers made and rejected by the parties when determining an award of reasonable attorney's fees and recoverable costs in construction-related accessibility claims. While these new provisions of the law attempt to limit damages in construction-related accessibility claims, it is unclear whether they will limit the number of lawsuits filed by plaintiffs.
At this juncture, it is unclear what value the above changes in the law will have for property owners and whether they will adequately protect property owners from sham lawsuits. If these new provisions are enforced by the Courts, however, there is a real potential for property owners to reduce legal costs when sued for construction-related accessibility claims by having their properties certified by an individual who is licensed as a CASp. When this new program is finally implemented by the State Architect, property owners would be well served in consulting with a duly licensed CASp to have their properties inspected and certified. Additionally, property owners who are contemplating new construction should seriously consider hiring an individual who is CASp certified to minimize their potential exposure. This can make a big difference as to whether a property is sued by a Plaintiff, especially if the property owner posts the disability access inspection certificate at the property. Thus, coming into voluntary compliance with the public accessibility laws could save property owners a lot of time and money.
Need further Assistance?
Should you have any further questions about this new law, or other areas affecting your enterprise, please contact the Pahl & McCay attorney with whom you regularly work or you may contact us generally at mail@pahl-mccay.com