There are three types of buildings in California –
- those that have been sued for ADA non-compliance,
- those that are yet to be sued and
- those that will get sued again.
A CASp certificate goes a long way to reducing one’s exposure and it also makes business sense. Rather than a business being subjected to obloquy for not being in compliance, having a CASp certificate is an intimation that the facility likely has or is working on achieving a higher level of access for disabled customers and it lets the would be serial plaintiff know that this is no easy target.
If there was a hierarchy of ADA litigation exposure then it would go something like this – major malls, strip malls, large retailers, hotels, restaurants, offices and multifamily residential. But there really is no gradation when it comes to litigation. We used to very rarely see multifamily properties being named, but now we are deluged with a plethora, to the extent we see several each week. Every week we get dozens of inquiries from property and business owners who are flummoxed by a lawsuit that has been filed against their property or business with respect to disabled compliance issues – yet disabled access compliance has been around for decades and really should be nothing new. Often the owner expresses consternation that someone would dare make such aspersions against them. They go on to say, “We have a number of guests/customers/clients/patrons who are disabled and not one of them has ever so much as mentioned anything about non-compliance.” Another fight or flight defense is, “We had the parking re striped recently and were assured it is 100% compliant.” We listen with the appropriate level of imperturbable fortitude and then commiserate with them and mention that the serial plaintiffs are only a small portion of the disabled community.
Typically we ask for the property address and view it on Google Maps® and the often very things the plaintiff mentioned are recorded for posterity on Google® for all to see. So in essence the plaintiff need not leave the comfort of their corner seating area at the local Starbucks® in order to be confronted with the non-accessible affront. The fact is there are barriers to access wherever one looks – a situation that has at times led to some marital conflict in my life. Occasionally, when my wife and go out for a romantic dinner and I leave the table to go to the restroom, the first thing she says upon my return is, “How many?” She is referring to the number of violations I encountered in my travels to the restroom and unless I tell her and then put it aside, the romance is put on hold. While this marital to and fro might be mildly amusing, and the barriers I encountered just code references to me, they are very real to persons with disabilities. They can be bothersome, annoying or downright limit their ability to access a facility to avail themselves of goods and services. And the law is very much on their side so when they file a suit they stand a good chance of being successful.
I have never encountered a business person who willingly wants to discriminate against any customer. First discriminating against people because of their race, religion, color or disabilities is against the law and secondly it would not make good business sense to reduce one’s potential customer base by 18-20% by excluding persons with disabilities. Once the owner has understood all this then the next aspersion is, “It is so expensive to get an ADA audit and then I have to fix everything.” Well firstly the cost of an audit is not that expensive and typically ranges from around $1,200 – $2,500. It is possible that the cost of remediation can run into the thousands, tens of thousands or more, but typically the most apparent barriers are the cheapest and easiest to fix and lower the exposure to ‘drive by’ litigants significantly. For the so called “readily achievable” barrier removal such as signage, re striping, etc. the costs range from $2,000 – $7,000 for a typical strip mall.
Another follow on is, “Once I have had an audit done then I have to fix everything, I’d rather not know what’s wrong and therefore not have to tackle the issues and subject myself to the expense.” Well, that’s a bit like being distracted by the incessant ticking of a desk clock and placing it in a closet so one is not distracted by the noise. The clock is still ticking. With a CASp (Certified Access Specialist) certificate in hand the owner can then budget for the more expensive repairs and also has at least an extended period of time to address them and include them in a budget or obtain financing if necessary.
On July 1, 2013, a piece of legislation known as SB1186 also known as Civil Code Section 1938 came into effect. For those interested it reads, “…A commercial property owner or lessor shall state on every lease form or rental agreement executed on or after July 1, 2013, whether the property being leased or rented has undergone inspection by a Certified Access Specialist (CASp), and, if so, whether the property has or has not been determined to meet all applicable construction-related accessibility standards pursuant to Section 55.53” The immediate implications are firstly, that new language in leases is required to reflect the property’s status regarding CASp certification, secondly, the inspection has to be carried out by a CASp- not just any other party, and thirdly, by implication if inspected by a CASp, the property does or does not comply with all applicable construction-related accessibility standards. In addition, if two properties being viewed by a prospective tenant are ostensibly the same, the savvy tenant would likely rent the property that affords them the least exposure or risk to litigation. The implications of this matter most to owners of retail property, but are also of significance to commercial office owners, who might have lower levels of exposure to serial plaintiffs, but there is an increasing awareness by tenants who understand the value of being in a property that is CASp certified.
Tenants are starting to make demands that the properties be certified as they are just not willing to take the risks associated with litigation. If their demands are not met they can, especially in a renters market take their business elsewhere. The long term implications seem to be leaning to everything being CASp certified eventually and hence everything being compliant with all applicable accessibility standards.