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Attorneys in California stay busy filing ADA lawsuits against rental property owners and their managers because they allege the owners have violated law.

 

WRITTEN BY ANTHONY C. GUICHARD  |  FOUNDER, ACR CONCRETE & ASPHALT CONSTRUCTION, INC. |  NOVEMBER 4, 2022

 

These lawsuits are being filed against strip centers, apartment buildings that are 15 units or more and businesses that are open to the public.  It appears that most of these lawsuits allege that owners have failed to meet the requirements of the ADA with regards to their parking lots and any “public” areas. The majority of the complaints focus on the following points:

  • Inadequately striped the parking spaces – e.g., wrong color striped, hash-marks and path of travel
  • Have not provided the “correct and updated” signage in parking lots.
  • Have not provided access for disabled individuals to leasing and manager’s offices, and the surrounding areas.
  • Missing the complete accessible route.

The Americans with Disabilities Act or “ADA” established anti-discrimination and accessibility requirements for businesses of all sizes. All businesses that serve the public must comply with these consistency changing policies. A common misconception is that no action is required unless a business is remodeling an existing “grandfathered in” or constructing a new facility however, this is not true.  The concept of “grandfathered in,” in simplest terms means a building built before a new law or ordinance is in place in which you are not required to comply with the new change, or in other words, you are “grandfathered” in for that new requirement – it’s a common misconception that often results in a major problem down the road.  An example would be; if your apartment building does not have a sprinkler system at time it was built, and a new law says it is required in all new apartments, your building does not have to now install the newly required sprinklers, your building is “grandfathered” in. ADA Compliance is not something that can be grandfathered in. However, there are instances where this can be argued.

The provision in the ADA that requires the removal of barriers in existing places of public accommodation where “readily achievable” is the reason behind the renewed litigation that we see in the courts and applies to all public structures.

  • Is an Apartment Building a “Public Accommodation” to Which the “Readily Achievable” Requirement Applies?

According to the United States Department of Justice, which enforces the ADA, this requirement does not apply strictly to residential dwellings, however, it does apply to the “common areas” of residential rental property that function as a place of public accommodation. In other words, the areas that are not intended for the exclusive use of tenants and their guests can be places of public accommodation.  The most common examples are the rental office, parking, entrances, access routes [or Path of Travel] drinking fountains, and restrooms serving the areas of public accommodation must also be accessible to individuals with disabilities.

While the ADA is a Federal program and is applied in all 50 states, it should come as no surprise that California is the most demanding of all the states.  In California, individuals can use the Federal ADA regulations in concert with the California Untruth Act to force businesses to comply with access requirements for persons with disabilities. The California state law authorizes individuals to bring actions for damages they have suffered. The law sets the minimum damages amount at $1,000 to $4,000 depending on the violation to which a disabled individual is entitled.  Additionally, attorney’s fees and damages are attached bringing most costs to approximately $12,000.  Often these matters are settled around $10,000 with an agreement that the owner makes the corrections within a 30-90 day period.  It is always in the owner’s best interest to become fully ADA compliant; however, prior to a lawsuit

  • What is My potential Liability if I Am Not in Compliance?

Without a CASp inspection, a violation provides statutory damages of $4,000 under Civil Code section 55.56; not $4,000 per each violation as previously allowed under the Unruh Act (Civil Code §52(a). If you are a qualifying small business (Civil Code § 55.56 (g)(2)(B)) and can correct all violations that are the basis of a claim within 30 days of being served with the complaint, the statutory damages can be reduced to a minimum of $2,000 for each offence.  A Certified Access Specialist or “CASp” knows which standards apply to a property based on the age of the facility and its history of improvements and can provide an ADA access compliance evaluation of any facility.

A person is denied full and equal access if the individual personally encountered the violation or the individual was deterred from accessing a place of public accommodation because of knowledge of a violation dissuaded the plaintiff. A denial of full an equal access includes instances where a person experienced difficulty, discomfort, or embarrassment because of the violation.  If you are found liable, you will be responsible for paying the plaintiff’s attorneys fees in addition to statutory damages.

  • Who Has Responsibility for ADA Compliance in Leased Places of Public Accommodation, the Landlord, or the Tenant?

While 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.

Landlords (lessors) are required to disclose 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 CASp, and, if so, whether the property has or has not been determined to meet all applicable construction-related accessibility standards.

  • I Have a CASp Inspection Report and Certificate. What Should I Do Now?

If your CASp inspection report has a determination of “meets applicable standards”, then the CASp has determined your facility meets applicable construction-related accessibility standards. Keep the CASp inspection report in your records and maintain the accessible features of your facility.

If your CASp inspection report has a determination of “inspected by a CASp” you should strive to adhere to your schedule for improvements to come into compliance with applicable construction-related accessibility standards. Keep the CASp inspection report in your records.  After improvements to come into compliance have been made to your property, you do not need to obtain a final inspection from a CASp in order to obtain or maintain “qualified defendant” status; however, you may elect to do so to ensure that improvements were made in compliance to the applicable standards. Most important, maintain the accessible features of your facility.

  • My CASp Report States Items That Appear to Be Physically Impossible to Correct, How Do I Address These Issues For An Older Building?

Your CASp report inspector typically will not offer conclusions however, the inspector should note “There may be technically infeasible items that cannot be corrected”. This item should be confirmed in writing by an ADA designer / general engineering contractor who has surveyed the project and reviewed the CASp report to make this conclusion. The letter should have very specific language and attached to your CASp report for future protection. The qualified ADA designer should be able to assist with physical hardships and protection.

  • I Reviewed My CASp Report and the Cost to Make These Corrections and I Do Not Have the Money to Make the Repairs, So What Should I Do?

A qualified ADA designer can assist in properly preparing a transitional implementation plan along with a phasing plan with a schedule of values. This plan must be attached with your CASp report for future protection. This plan explains a financial hardship and allows the corrections to be performed over a three-year period.  This allows the cost to be deferred along with potential tax savings. The items of corrections will be noted in a list of priority typically starting with parking, path of travel to entrance and a path of travel from city sidewalk to the entrance. It is important the owner become compliant as to eliminate future lawsuits. The mistake would be to only perform a few corrections due to improper advice therefore leaving the door open to be sued for remaining corrections when the option for a three protection is available. Again, consult with a qualified ADA designer.

  • Here’s a Real-Life Story

Here is a true story and one I will use as an example. Two years ago, my company was contacted by a client who was caught up in an ADA lawsuit. This client owned a small retail center with 4 tenants. The demand in his lawsuit was $14,000 and he settled for $11,000 and the agreement that he would make the corrections within 60 days. The client contacted ACR and we provided a full ADA compliance proposal rather than just the few items listed in his lawsuit for approximately $6,000. The client refused our proposal and stated that another contractor explained to him that all he needed to do was stripe a parking stall and put in a sign for $1,000. We further demonstrated that this information was incorrect and he would be left open for future lawsuits.

The client went with the other contractor’s advice and contracted with him however, just recently this very client contacted ACR and explained he was sued again for $12,000 this time. I hated to use the phrase “I told you so” however, it fit the situation.  Luckily, the client went with our proposal this time for full compliance. Clients are often confused with the language in the lawsuit that may only depict general allegations therefore they are focused on fixing only one item named in the lawsuit. Often these matters are dismissed with prejudice, meaning this client cannot revisit the same lawsuit again although, it leaves the door open for other litigants to file on items not corrected.

Finally, I cannot stress enough how important it is to consult with an ADA designer who may also perform the construction. 95% of your protection comes from the actual design to confirm you have all the necessary items in the plans covered with the documentation necessary through a CASp report, transitional plan, implementational plan, phasing plan, general engineering letter to establish physical hardships with a schedule of values. Very few architects, contractors or city officials can offer this complete information that provides the owner with protection.

 

ABOUT THE AUTHOR
Anthony C. Guichard is the President / Founder of ACR Concrete & Asphalt Construction, Inc. He holds licenses; A, B, C-12, C-8 & C-32. ACR Concrete & Asphalt Construction, Inc. has significant experience addressing complex access compliance issues in the built environment. They are committed to improving access for individuals with disabilities by providing information, education, and access compliance solutions to commercial and rental property owners throughout the State of California. For more information call (714) 377-9569 or (310) 773-7900 or visit them at www.acrconcreteinc.com.

 

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