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A CASp has passed an examination and has been certified by the State of California to have specialized knowledge of the applicability of state and federal construction-related accessibility standards for ADA compliance. A CASp will know which standards apply to your property based on the age of your facility and its history of improvements. While a licensed design professional, such as an architect or engineer, can provide you an access compliance evaluation of your facility, only a CASp can provide services that offer you "qualified defendant" status in a construction-related accessibility lawsuit. You can retain the services of a CASp at any time, however, "qualified defendant" status is only provided if you receive an inspection of your existing facility and a report from a CASp, and abide to a schedule of improvements toward compliance before a construction-related accessibility claim is filed against you.
Approximately 20% of the US population has a disability, and that’s a figure that is only going to grow as our population grows older. In these tough economic times, why would any business want to exclude potential customers? These disabled customers have great purchasing power as the affluent baby boomer generation approaches retirement age. The disabled community also spreads the word on disabled friendly businesses.
Hiring a CASp...
A defendant in a construction-related accessibility claim against a place of public accommodation becomes a "qualified defendant" if a CASp has performed an inspection of the area with the violation and has issued a CASp inspection report to the business/facility owner prior to the date the defendant was served with a lawsuit. The CASp inspection report should state a determination of either “meets applicable standards” or “inspected by a CASp”. A report with a determination “inspected by a CASp” will identify violations of the applicable standards, list necessary improvements for their correction, and will be accompanied by a schedule for completion of the improvements over a reasonable time. To be a “qualified defendant”, you do not have to be the party who hired the CASp, so long as the basis of the lawsuit is a construction-related accessibility claim. In addition, the facility inspected does not need to be compliant with applicable construction-related accessibility standards in order for you to become a "qualified defendant". Upon being served with a lawsuit asserting a construction-related accessibility claim, a "qualified defendant" may request a court stay to postpone legal proceedings and an early evaluation conference.
In addition, SB 1186 legislation provides that you may be entitled to reduced statutory damages in the following instances:
The area with respect to the plaintiff's claim was determined to be "inspected by a CASp" or "meets applicable standards" prior to the occasion the plaintiff was denied access; the area has not been modified since receiving a determination of "meets applicable standards" or the area was in progress of improvements toward compliance according to the schedule indicated in the CASp Inspection Report; and that all violations giving rise to the claim have been corrected, or will be corrected within 60 days of the complaint being served. Statutory damages reduced from $4,000 to $1,000 per occasion the plaintiff was denied access.
Either or both can be sued. The ADA places the legal obligation to remove barriers, provide auxiliary aids and services, and maintain compliance of accessible features at a place of public accommodation on both the landlord and the tenant. The landlord and the tenant may specify within the terms of the lease who is responsible for which areas of the facility, but both remain legally responsible.
Additionally, under California law, the landlord or commercial property owner is required to state on every lease form or rental agreement executed on or after January 1, 2017, whether or not the premises have been inspected by a CASp. As of July 21, 2017, “commercial property,” in regards to disclosures of disability access, is defined as property that is offered for rent or lease to individuals operating, or intending to operate, a place of facility of public accommodation in which the general public is invited.
The Disability Access Inspection Certificate (Certificate) is a certificate of inspection, not a certificate of compliance. A CASp does not certify that a facility meets compliance with issuance of a Certificate. A Certificate is required to be issued to you with a CASp inspection report whether or not your facility is determined to meet applicable construction-related accessibility standards. Disability Access Inspection Certificates are sequentially numbered and bear a State of California Seal to deter forgery. This number is recorded by the CASp in a record book maintained for that purpose and identifies that the certificate is issued in conjunction with a specific CASp inspection report. As a business/facility owner, you should accept no other certificate offered by a CASp other than a Certificate purchased from the Division of the State Architect. You are not required to post the Certificate at the facility that was inspected, but you should have it readily available to offer it as proof that you have had an inspection and are a holder of a CASp inspection report issued according to the requirements of CRASCA. In addition, if you do decide to post the Certificate, you may want to post a color copy and keep the original with the inspection report, as site conditions may cause the Certificate to fade or deteriorate. CASp inspection reports, however, should remain confidential and should only be disclosed after seeking the advice of an attorney.
Absolutely! In the event you are served in a lawsuit, a review by a CASp of the alleged violations can help determine the validity of the violations and the best way to correct them. We are experienced in working with defense attorneys in assisting to help fight, or settle, any claims.
In order for you to be considered a "qualified defendant", however, the CASp must provide the inspection and report to you PRIOR to a construction-related lawsuit is filed against you, and it must include a schedule of improvements for the correction of any identified violations.