Category: ADA, Unruh Act

Click here for the link to Part 1 of this Article dealing with the ADA or here for the link to Part 2 of this Article dealing with the Unruh Act and California’s Construction Related Accessibility Standards Act.

Commercial property owners are now required to notify lessees about their property’s compliance with accessibility standards. Civil Code Section 1938 now states: 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 standards pursuant to Section 55.53. 

The top 10 complaints received by California Commission on Disability Access are:

1 Parking. Loading zones/van access aisles are not compliant or non-existent.
2 Parking. Existing parking spaces are not compliant.
3 Accessible Route and Entry. Routes to and from parking lots are not accessible.
4 Parking. A parking lot does not contain minimum number of accessible parking spaces.
5 Parking. Signage in parking lot is not compliant. e.g., parking spaces need to be designated as reserved by a sign showing the symbol of accessibility.
6 Access within Public Facility. Heights of surfaces such as counters, bars, or tables are not compliant.
7 Access within Public Facility. Access aisles within the building are not accessible. e.g., dining or work surfaces are not on an accessible route.
8 Toilet rooms/Bathrooms. Grab bars in bathroom are non-existent, or grab bars are not compliant.
9 Toilet rooms/Bathrooms. Lavatories and mirrors in bathroom are not accessible.
10 Accessible Route and Entry. Entry doors are not accessible.

This information is provided for informational purposes only and should not be construed as legal advice. It should not be acted upon without consulting a licensed California attorney about the facts, particular needs and questions of the person or entity considering these issues.

Click here for the link to Part 1 of this Article dealing with the ADA.

The Unruh Act is California’s state law equivalent of the ADA. The Unruh Act incorporates many provisions of the ADA, but there are some differences between the two statutes. As one major example, the Unruh Act provides for payment of damages to a plaintiff where the ADA does not allow for damages. 

Another significant area of difference with the ADA is how the Unruh Act handles certain accessibility claims in public accommodations. The Construction Related Accessibility Standards Act was added to California’s Unruh Act in 2009 and was amended in 2012. 

The Construction Related Accessibility Standards Act contains procedures that can help certain defendants avoid some of the turmoil and expense associated with a construction-related accessibility claim. An accessibility claim asserts that a defendant failed to adhere to statutory access standards of a business that is open to the public.

Some of the significant provisions of the Construction Related Accessibility Standards Act include:

• the establishment of the Certified Access Specialist program (CASp),
• a stay on some types of ADA litigation,
• limits on plaintiff attorneys sending pre-litigation “demands for money” letters • limits on stacking and milling of claims,
• reduced damages per violation,
• reduced attorney’s fees awardable to the plaintiff,
• requirements about providing specifics related to claims of being denied equal access to public accommodations 

A CASp – A Certified Access Specialist (a CASp) is a person who has been certified by the State of California to assess the accessibility aspects of a business. If a public accommodation has been inspected and certified by a CASp, it may qualify for protections in litigation that are not otherwise available to a defendant. 

Those protections include reduced damages, the ability to stay litigation, and an early settlement conference. A CASp should inspect all new construction and is also available to review and advise on existing accommodations to determine if they meet the access standards.

Stay on Litigation – If a business is CASp certified, it may be entitled to stay an accessibility lawsuit for 90 days and request early evaluation conference. Small businesses having less than 25 employees and falling below a certain gross revenue target over the preceding three years may also qualify for a stay on litigation if they promptly address the access concerns. 

Demand Letters – A plaintiff attorney’s demand letter must now include the attorney’s State Bar number, a written advisory of rights and responsibilities, and list the facts that are reasonably necessary to identify the violations, all barriers encountered, how the barriers interfered with the plaintiff’s access, and the dates when the violations were encountered. The plaintiff’s attorney must also simultaneously send the demand letter to the California State Bar. 

Stacking and Milling – The Construction-Related Accessibility Standards Act limits stacking and milling of claims. Stacking occurs when plaintiffs claim that they encountered access barriers on multiple occasions at the same location, thereby multiplying the statutory damages by the number of visits. Milling arises when an attorney brings virtually identical claims for the same plaintiff against multiple businesses.

Attorney’s fees – Attorneys fees are available when a plaintiff encountered violation or was deterred from public accommodations due to them. When determining the amount of reasonable attorney’s fees that can be awarded to a prevailing plaintiff, a court may now consider settlement offers made and rejected. This has the tendency to make plaintiff’s attorneys more reasonable in their demands.

The protections of the Construction-Related Accessibility Standards Act may not apply to ADA litigation venued in the federal courts. 

Click here for the link to Part 3 of this Article dealing commercial property disclosures and common accessibility complaints.

This information is provided for informational purposes only and should not be construed as legal advice. It should not be acted upon without consulting a licensed California attorney about the facts, particular needs and questions of the person or entity considering these issues.

The Americans with Disabilities Act (ADA) is the federal law that requires all people receive full and equal access to public accommodations. Title Ill of the ADA prohibits discrimination based on disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases or operates a place of public accommodation. 

Public accommodations are defined as goods, services and privileges that are made available to the public. The ADA established requirements for twelve categories of public accommodations, which include:

• shopping malls,
• stores,
• restaurants,
• bars,
• service establishments,
• theaters,
• hotels,
• recreational facilities,
• private museums and schools,
• doctors’ and dentists’ offices,
• and other businesses.

Nearly all types of businesses that serve the public are included in the twelve categories, regardless of the size of the business or the age of their buildings. Commercial facilities, such as office buildings, factories, warehouses, or other facilities that do not provide goods or services directly to the public are nevertheless subject to the ADA’s requirements when they undergo construction and alterations.

The ADA requires removal of barriers to accessibility when it is “readily achievable” to do so. Readily achievable has been defined as “easily accomplishable without much difficulty or expense.” This requirement is based on the size and resources of a business. In determining whether an action is readily achievable, courts have considered the following factors:

• the nature and cost of the action needed to remove the barrier,
• the overall financial resources of the site involved,
• the fiscal relationship of the site in question to any parent entity,
• the overall financial resources of the parent entity.

Why is ADA compliance important for California business owners? California has 12% of the American population, but 40% of the ADA related litigation. 

Click here for the link to Part 2 of this Article dealing with the Unruh Act and California’s Construction Related Accessibility Standards Act.

This information is provided for informational purposes only and should not be construed as legal advice. It should not be acted upon without consulting a licensed California attorney about the facts, particular needs and questions of the person or entity considering these issues.