Recently, there has been a considerable change in access compliance law in California that now hopes to create a more interest-based approach to solving the
problem of compliance. In order to help businesses in Woodland understand how the access laws have changed, how this will affect businesses in Woodland, and how the Building Division is supporting this process the following information is provided.
During the 2007-08 legislative session the California Chamber of Commerce and other business groups worked closely with legislators, disability rights groups, and consumer attorneys to achieve historic reform to California’s disability access laws.
Please see the Cal Chamber web page for more information.
The reform legislation, SB 1608, is designed to promote and increase compliance with ADA laws by providing equal public access in places of business to individuals with disabilities, while reducing unwarranted litigation that does not advance that goal. The major provisions of the legislation became effective in 2009. Please read the Top 10 Things about SB 1608 That Help Business Owners.
The major provision of SB 1608:
Establishes a process by which businesses, if sued for violation of accessibility standards, may obtain a temporary stay of any litigation along with an in-person early evaluation conference with the court, attended by persons with authority to resolve the dispute between the parties, for the purpose of deterring frivolous cases and evaluating prospects for early settlement.
The functional centerpiece for the endeavor of SB 1608, established and monitored by the Division of the State Architect, is the creation of the Certified Access Specialist (CASp) program, SB 262. A certified access specialist (CASp) is a person who 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. Either building owners or tenants can hire a CASp inspection (either can be sued for non-compliance).
If the access specialist determines that corrections are needed in order for the site to be brought into full compliance, the business owner is entitled to a written report identifying changes that need to be made and recommended timeframe for the fixes. A small business inspection and report could typically cost approximately $1,200. A list of Certified Access Specialists (CASp) can be found on the Division of State Architect’s Web site.
Business owners should keep their inspection report confidential and in a safe place. If they are ever sued, they 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 (EEC). If they do not have a report, they will be barred from this benefit.
Businesses whose structures have received an inspection report by a CASp will be able to request a window sign (Disability Access Inspection Certificate) 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.
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). The EEC is a court-run conference between the parties, at which both parties will have the opportunity to explore whether the lawsuit can be avoided. 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.
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.
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. In addition, the advisory will explain that receipt of a demand for money does not necessarily mean the business is liable.
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 only 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 exist 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 attorney’s fees award at the conclusion of a case.
By July 2010, local building inspection offices will be required to have at least one Certified Access Specialist CASp on staff or retained, to provide consultation (consultation means providing information on accessibility laws and requirements and is not a formal CASp report or inspection as described above).
The Senior Building Plans Examiner for the City of Woodland is a certified CASp inspector for the City. This important position can provide valuable information to businesses that have compliance issues and need answers. The Senior Building Plans Examiner is available to answer any questions businesses in Woodland may have about accessibility compliance. Please contact the number below.
Contact Building Division at