Posts Tagged ‘CASp’




ADA Lawyer faces his own ADA lawsuit

| Tuesday, May 7th, 2013 | No Comments »

This is how widespread ADA compliance problems are:

Even an attorney who regularly files lawsuits regarding ADA violations at businesses has violations at his site.  Strange thing, he claims that this suit itself is frivolous but faces the very real fact that his visitors can only see him if they use the stairs.

The only real defense of an ADA lawsuit is to get the law on your side.

CASp inspections can help you with this as they do carry legal benefits.  More information on CASp?  Read SB 1186.

 

Original Articles about this attorney being sued?  See below:

 

SB 1186 Part 1: Not the magic bullet businesses were hoping for

| Tuesday, November 6th, 2012 | No Comments »

Senate Bill 1186 couldn’t pass through California’s governmental processes fast enough for businesses. It was heralded as the end of “drive by lawsuits”, but the final bill may have fallen far short of that lofty goal.

Unfortunately for business owners, none of those parts does anything to curb the tide of accessibility lawsuits. In fact, predatory lawyers seeking to bolster their income may start filing even more lawsuits.

SB 1186 has nine important parts. This article focuses on the first three sections.

Part One of the law tries to stop “frivolous” lawsuits by requiring attorneys to send a copies of their demand letters to  the California Commission on Disability Access and, until January 1, 2016, to the State Bar. It also puts some limits on what can be in a demand letter. For example, what has been called “perfectly legal extortion” can no longer happen. In the past these serial litigants would demand a few thousand dollars, or they would file suit seeking tens of thousands of dollars from the target business.

However, because of the rise of CASp, very few letters use this tactic anymore anyway. And nearly all recent lawsuits are based on just a few actually legitimate complaints rather than the laundry list lawsuits of the last decade. This part of the new law is largely behind the times and outdated.

Part Two attempts to protect businesses which are already in the process of becoming compliant. Until now, even if you are in the middle of construction to fix an accessibility problem, a drive-by litigator could send you a lawsuit alleging that it wasn’t correct at the exact moment they visited — and legally they’d be right. In this case, 1186 does give a great benefit. It grants even greater protection for anyone who has hired a CASp. You don’t have to be fully compliant; you don’t even have to have started construction. So long as you’ve hired a CASp before you get sued, you are now protected.

Part Three is what everyone thought would be the magic bullet. It lowers the amount you can be fined from a mandatory minimum of $4000 to a minimum of $1000. However, that only applies if you are able to fix the problem within 60 days of being notified. This type of rush construction is great for contractors because they know you are under the gun so they charge whatever they like. Your total out-of-pocket expenses could even be higher than just ponying up the $4000. It’s also very important to understand that even the $1000 fine is “per offence”, which means the same litigant can say they visited your store or restaurant 10 times and multiply all of the fines by 10. Or 20. Or 50.

So, there are some benefits granted by SB 1186, but getting a CASp survey is still the only true legal protection against accessibility lawsuits.

You can read the law for yourself by clicking here: http://www.leginfo.ca.gov/pub/11-12/bill/sen/sb_1151-1200/sb_1186_bill_20120430_amended_sen_v98.html

Stay tuned for the second part soon.  Any questions about how SB 1186 applies to your site or looking to schedule an inspection?  Call us at 866 982 3212 or email us at help@ytaccess.com.

CASp May Not Provide Some of its Intended Protections when Sued in Federal Court Under the ADA

| Tuesday, August 7th, 2012 | No Comments »

Benefits of CASp may be only effective as far as the stay goes if sued in State Court. There are additional items such as attorney’s fees which still provide benefit to clients of CASp.

California’s 2009 Construction-Related Accessibility Standards Compliance Act (“the Act”) was designed to curb abusive ADA litigation by creating the Certified Access Specialist program (CASp). CASp enables business owners to follow procedures to “certify” that their facilities meet state and federal accessibility standards. One benefit CASp offers is that business owners with certification have the option to stay or stop all construction-related ADA litigation initiated against them and instead proceed to mediation, making it possible to avoid expensive and lengthy proceedings that drive up legal fees. But a recent court decision suggests this may not be the case when sued in federal court, suggesting that CASp may not offer all the benefits intended by the California legislators.

Read the entire article here: http://articles.jmbm.com/2010/11/23/casp-may-not-provide-some-of-its-intended-protections-when-sued-in-federal-court-under-the-ada/

Nonetheless the take away is that CASp is still a superior product, although costlier. It provides some definition when it comes to reasonable attorneys fees, but its effectiveness may be limited to State Court only.

Interested in a CASp inspection? YTA offers ADA reports and CASp reports. Questions or comments? Call us for a quote. 866 982 3212 or email us at help@ytaccess.com

SB 1186 Passes Senate Judiciary Committee

| Friday, May 11th, 2012 | No Comments »

The following is a guest article by a CASp certified architect:

 

SB 1186 Passes Senate Judiciary Committee on May 8

By Yung Kao, CASp CBO NCARB

May 10, 2012

When the U.S. Congress passed the Americans with Disabilities Act (ADA) in 1991, some people called it a “Bill of Litigation” as it requires building and business owners to retrofit existing buildings and remove “architectural barriers” that were created prior to the law. Combined with California’s Unruh Civil Rights Act and other anti-discriminatory laws, the ADA became a much more potent mechanism for lawsuits.

About 12,000 ADA claims were filed nationwide from 1991 to 2011, and about 8,000 of them were filed in California within the past 8 years alone.  These filed lawsuits represents only a fraction of the actual number of threats that have been made on businesses as most threat of lawsuit results in a settlement rather than a court action.

A big portion of those cases in California have been filed by a couple dozen lawyers. These self-proclaimed access rights crusaders are generally perceived by the business community as “drive-by” litigants.  Some of them do appear to be more interested in collecting monetary settlements than improving access on the premises they sue. These cases are often filed in large batches by geographic location.  The main vehicle for these threats originates in a demand letter, stating that the stakeholder pay money otherwise a lawsuit situation will erupt.

Most businesses and property managers settle, as a court battle could result in a larger fine, along with an increased payment to the opposing attorney.

In response to the outcry from the business community, California has at least six bills dealing with accessibility claims in the current legislative session. An unexpected event to accentuate this drama is an open letter in March from Senator Dianne Feinstein to California Senate President pro Tem Darrel Steinberg, urging him to use his leadership to advance legislation that would curb what she called “predatory lawsuits” and “coercive demand letters” that are “unfairly and unnecessarily threaten the viability of some small businesses in our State”. The letter specifically mentioned California’s SB 1186 introduced by Republican State Senator Dutton as an example of such legislation. Steinberg’s reply letter elaborated on SB 1608 of 2008 to illustrate the legislature’s efforts in deterring frivolous ADA claims. He further explained that the “90 day to cure” provision in SB 1186 is inconsistent with other protected categories in California’s Unruh Civil Rights Act.  This inconsistency with the other protected civil rights in the Unruh Act explains why any bills with provisions to include a cure period are consistently defeated.

In April, Steinberg took over SB 1186 and introduced an extensive amendment to the bill. The 90-day period to cure was deleted from the bill, while other similar bills still containing various time periods to cure, have been defeated.  Because of the lack of a cure period, Steinberg’s version of SB 1186 became the only accessibility bill in this session that was being seriously considered.

If passed, the following three major provisions would become law:

  1.  Prior to filing a lawsuit, no attorneys or other parties may serve a letter that demands monetary settlement or implies that business and building owners may be liable for damages and attorney fees because of alleged ADA violations.
  2. Attorneys who intend to file an ADA claim must serve a notice to the intended defendants at least 30 days prior to the filing.
  3. Commercial property landlords need to disclose to prospective tenants in the lease agreements whether the premises are CASp-inspected or not.

Four accessibility bills were heard by the Assembly Judiciary Committee on May 8, and on that same day the Senate Judiciary Committee processed another two accessibility Bills, including SB 1186 as amended by Steinberg.  The Committee passed the Bill 4-1, with the descending vote interestingly by none other than the Senate Majority Leader and author of SB 1608, Senator Ellen Corbett.

It is almost inevitable that this Bill resort to the CASp inspection as established in SB 1608 in 2008 as the real solution. A major goal of the Construction-related Accessibility Standards Compliance Act (CASCA) of 2008 is to devise some sort of protection for the property and business owners who have made a proactive effort to obtain compliance or are in the process of obtaining compliance. The CASCA considers a comprehensive survey of the property by a (CASp) key evidence to define that proactive effort.

The CASp program was a result of two years negotiation among different stakeholders, and was widely hailed by the business communities including California Chamber of Commerce, California Restaurants Association, California Business Properties Association and California Hotel and Lodging Association. Though SB 1186 would not mandate any CASp inspections, it does reaffirm that the CASp inspection program is still the best solution to reduce and eventually eliminate ADA claims in California.

While SB 1168 would not eliminate ADA lawsuits entirelyhopefully it would effectively curtail the scare tactic of demand letters.  The only full protection against ADA claims, however, is to fully comply with the laws, and that begins with a CASp inspection.

You can reach Yung Kao directly for comments and inquiries about his services at his direct email: accessolution@att.net, or his direct number: 626.209.9709

Alternately, you can find out more about the details of CASp and its many benefits by emailing us at help@ytaccess.com or calling us at 866 982 3212.  Any messages you leave for Yung with us, we will also forward to him.

3 Steps to follow after Receiving an ADA Compliance Letter

| Saturday, March 26th, 2011 | No Comments »

What do you do when you receive an ADA compliance letter? The general gist is pretty standard:

  • Here are some items that are out of compliance
  • These laws say you are in violation
  • Pay our firm money to settle or we will take you to court

This is a nightmare situation for a small business owner.  You never have the resources to fight this, nor the time to look deeply into it yourself.  You might have heard a few things about this on the news or from your friends.  But you’re not an expert. This situation is bound to give you endless nights tossing and turning, feelings of helplessness, anger and disbelief.  Unfortunately, because of your limited resources, as a small business, you are an easy target for litigants.  So what should you do?

First off, I must offer a disclaimer.

I am not an attorney.

I cannot give you legal advice.  For legal advice, contact an attorney (for attorney info see below at step 1).

The most I can offer here, is our experience dealing with our client’s situations.

This article is meant to help guide you so you can make the right decisions.

Instead of making costly decisions.

What do we see our clients do?

 

The Situation:

An ADA compliance notice should list areas of deficiency in your facility.  The exact details of the violations are always changing so these letters change too.  But in general they follow the three bullet points above.

In the past, such notices were a cookie-cutter list, some of which were invalid and would get thrown out in court. The few items that stuck would prompt you to settle because even if you fought it, those items are legitimate.  In the eyes of the law, really, the only eyes that do count, being in violation with the requirements mean that you need to pay the settlement and then pay both their attorney and your attorney.

Nowadays, the specific tactics have changed as the laws have changed.  Rather than threatening you with a list, half of which could get thrown out, making them look bad, savvier attorneys may threaten you with one or two very simple but legitimate issues.  Then you’re 100% wrong, and you HAVE TO FIX IT AND PAY.

So before we get to the steps, let’s address two scenarios.  What’s the worst that could happen?

The worst that will come from not following these three steps properly is that you will have to fight and lose a lawsuit and then pay the settlement.

Being sued once, if you didn’t learn your lesson the first time, there’s a good chance you will get sued again.  In fact, you could get sued for the very same issue by someone else while you’re still dealing with your first lawsuit.

This has happened to at least one of our previous clients.  They didn’t just refuse our service after asking about what we do during the initial lawsuit.  (They felt that the lawsuit was unjustified because in their words: “We were sure we didn’t do anything wrong.”) They were so emotionally distraught that just talking about the issue caused them to vent at us as though we brought it on them. They didn’t just not hire us, they also refused to hire ANYONE. In fact they refused to DO ANYTHING, as though their stubbornness would make the situation go away. Unfortunately, it did not.

It took them two lawsuits which they both settled before they hired us.

In a different situation, a quasi-government entity had me do an ADA compliance study. The laws yielded them some results which we presented. For what ever reason, this entity decided that an alternate construction was the most cost effective solution, despite our best efforts to warn them that this “solution” broke other laws.

They then got sued by someone else for their brand new construction.

Don’t be stubborn. Compliance is compliance. If you don’t hire us at least follow these steps, get an attorney and then get an ADA expert to study your site.

The Absolute BEST thing you can do to avoid such a letter is to be compliant.  Since the savvier attorneys who litigate such causes have been sending out ADA experts to measure and document violations, your best bet is to become ADA compliant.  You can do this a variety of ways.  You could hire ADA consultants like ourselves, or you could try and do it yourself.  Both options are presented here:

ADA Consultation Guide: What we do and where you can go to learn

Barring that, if you do have such a letter, let me emphasize a few things.

There are three steps to take.

Only three.   Sounds simple enough?  READ ON!

 

Step 1. The most important thing is to answer the letter.

I cannot emphasize this enough.

If you ignore the letter, in 90 days you will probably be sued in court.  Do NOT throw away the letter. Throwing the letter away or ignoring it, compounds the problem, so that not only did you violate the ADA (thereby committing under the Unruh Civil Rights Act, making your violations an act of discrimination) but you also don’t show good faith.  Intention does not matter.  Your recorded, documented actions do matter.  They matter a great deal.  Ignorance is not an excuse, it’s nearly an admission that you did something wrong, by not being responsible enough to do what you should have done in the first place.

You must be a responsible.

Doing otherwise only weakens your position.

So how do you answer it?  You can write the letter yourself, or you can hire an ADA experienced attorney.  We would recommend the individuals mentioned here:

Frank Chen

Kevin Sawkins

Both of these attorneys are experienced with handling ADA cases.

Even if you write the letter yourself, we still recommend that you hire an ADA consultant.  An attorney by the very nature of their trade can only help you AFTER YOU ARE SUED.  To prevent being sued in the first place, it logically follows that you should become ADA compliant.

 

Step 2. Get an ADA Compliance Survey

This step seems like a no-brainer.  But you wouldn’t believe the number of people who email or call and insist that their store is compliant because we have wheelchair users come in all the time!

This claim is the equivalent to a business addressing a lawsuit from one of their employees by claiming that their business is compliant because the other employees did not also sue.  This isn’t a defensible position as people don’t have to sue if they don’t want to.  Rather than argue with this excuse, business owners must understand, like it or not, if you open a business, you must follow the letter of the law.

If anything, getting an ADA expert who look at your site to verify the claims is one possible way to get around the problem.  Remember, they are suing you, so the burden of proof is on their side.

You must get the facts.  ADA violations are very dependent on specific measurements.  After all it’s the specific measurements which have gotten tens of thousands of small businesses in trouble.

If this litigant is new to this field, they could have made some errors somewhere, such as claiming that van parking cannot be shared with other access aisles.  We’ve helped attorneys with this.  The intermix of California Building Code and ADA Access Guidelines with all the continuing discussion can be very confusing, even to professionals.  Many websites contain faulty information, or outdated information as do many ADA guidebooks.  A plaintiff new to this field might try to sue you for something that you aren’t required to do.

So getting an expert to verify the claims and then having your attorney talk to their attorney is the best way to resolve this issue.

What kind of expert should you get?  The highest license available on ADA expertise (in fact the only one) is called CASp.  You can read about it here.

ADA Compliance: Why CASp?

The (inexpensive) Cost of ADA Compliance

At this point you should understand that step 2 by itself won’t solve the issue.  You MUST FIX THE VIOLATIONS.  No survey, not even a CASp inspection will solve ADA violations by itself.  You must actively address the issues.  Which brings us to Step 3.

 

Step 3. Remediate the ADA Violations

So now you have the ADA violations in hand.  What then?  When following up with clients, we are always astounded to hear that they did nothing with our report.  Or they gave it to a contractor who took the report away and never returned.  Maybe I should stop being so surprised.

Ideally, this step should have occurred first.

Doing Step 3 before any notice is received will help PREVENT LAWSUITS IN THE FIRST PLACE.

Most lawsuits that happen ask for settlement money, looking for the simplest violations.  These are the most egregious violations since not repairing items that could be easily dealt with shows negligence on the part of ignorant businesses.  The best thing to do then, is to remove that ignorance and do your best to comply with the law.

This doesn’t mean you have to fix everything.  Many of the items are of small expensive.

For instance, insulating pipes could cost as little as 30 dollars.  But buying the proper insulation and not addressing the hot water pipes even if you wrapped the drain, is a problem.  I’ve seen pipes wrapped in duct tape and packing foam.  Is that insulating?  After a while, these things get dirty, get torn off and look awful.  Is that really a solution in the long run?  (Incidentally, Here is a website that sells pipe insulation materials: Plumberex, ADA compliant Solutions.  We met them at a disabilities trade-show last year.)

But insulation as duct tape and foam… that’s something for the courts to decide.  Duct tape may save you 30 dollars, perhaps, but it is grounds for a potential lawsuit.

But wait, why are you trying to save $30 when a lawsuit will cost you thousands?  Aren’t you complying to avoid a lawsuit in the first place?

Best to do is to understand what the law is, and then exceed the letter of the law.

 

ADA Compliance Takeaway

So okay, these steps are long enough for a blog article.

Step 3 can take some time and effort.  If you don’t have sole responsibility for your parking lot, you may have to talk with your property manager.  I cover those issues above in a link, but I’ll link it again: The (inexpensive) Cost of ADA Compliance

Compliance can take time.  If you are sued, your number one priority should be to hire an attorney, or at least talk to a knowledgeable one.  We work with attorneys, give us a call we can introduce you to some experienced attorneys.

But the urgency of being in a lawsuit situation aside,  obviously education is the way to understand your legal liability.  Step 3 is the only step that will prevent future lawsuits.

To tell you the truth, it’s often too late to do anything but settle after you are sued.  A violation is in fact a violation. Preventive measures can only happen BEFORE a lawsuit.

Obviously then, education is the key.

Compliance is the solution.

But wait.  Compliance requires special knowledge.  Doing your taxes isn’t that easy, and doing a business’s taxes requires quite a bit of commitment upfront and on-going.

So why not hire a good CPA?

It takes architects about 3 months to learn all about the ADA, the different laws and so on.  The problem isn’t the specific building code (although all those numbers can be confusing), it’s all the legality that surrounds it.  And of course, they also need real world experience.

For someone with no experience in this field, it will take them about 6 months before they become able to inspect properties on their own.  At least a year before they can begin to advise people on what to do.  So why wait a year and spend all that effort to save several hundred dollars? Why not hire a good and experienced ADA expert?

Best to get that CASP report right away.

 

Thoughts?  Questions?  Comment below for feedback, or for more immediate and confidential assistance, call 866 982 3212 or email us at help@ytaccess.com

ADA Pricing Guide: How to put a Price Tag on your ADA Liability

| Monday, March 14th, 2011 | 2 Comments »
One of the scariest things about ADA Compliance for business owners is the lack of a definitive price. If you ask an ADA Consultant about their services, they will give you a wide range of prices for just their service. If you are in California, such an ADA Consultant may mention CASp — the median price of which will be around $2400. CASp has a host of significant benefits, but also some responsibilities for the person getting the survey.

Benefits and Liabilities of CASp

But assuming that you, a small business owner, can even afford $2,400, you’d probably be scared stiff about the Pandora’s Box of cost an ADA Consultant could discover. CASp surveys only find issues, they don’t fix them. Any ADA survey is only the first phase of ADA compliance. No survey — not even CASp — can stop all lawsuits from happening. The only way to completely remove your liability is to become 100% ADA Compliant, which in many cases is prohibitively expensive for a small entity. However, knowledge is power, and a survey does give you the power to significantly reduce your liability. In order to ward off lawsuits, you’ll be able to fix many of the glaring problems.

But what if the survey turns out major problems and you’re suddenly were on the bill for some unknown huge amount of money? Getting your access advice from a contractor is especially scary in this regard because there is always the temptation for them to say you need more expensive fixes than are really necessary.

This is the fear.

But don’t worry too much. The majority of issues for ADA compliance can be quite inexpensive — or even free. Understand that the inexpensive fixes are the ones which serial litigants use to target businesses. Not fixing something which is “readily achievable” makes a business look negligent. Also, given the relative complexity of the both state building code and the different Federal standards, knowing exactly what to do (without making yourself more liable, should you fix the wrong thing) can be quite difficult.

But now you can stop worrying.
This guide is meant to explain the costs of ADA compliance to you, as a small business owner.

(We will cover some of the inexpensive fixes in different articles. You also can take a glance at some FREE ADA Access Tips.)

Case 1: The Mom and Pop Restaurant
So as a small business owner, let’s say you own a small restaurant in a strip mall. Your typical eatery will have around 20 seats. Your average cash flow will be, let’s say, $40,000. What is your liability going to cost?

First off, you’re a small entity. Your threshold for “unreasonable hardship” is low. You are still liable but what you are directly responsible for won’t be enormous.

You’re also renting in a strip mall, so your parking lot is shared. It’s true that you’re still liable for the parking — parking does need to be addressed — but you share this liability with the property management company and landlord. In order to get anything fixed you’re going to have to talk with them. The same is true for any truly expensive renovations. Moving restroom walls, enlarging spaces — all of these require some communication with the property manager. If this management company is huge — while you both share liability, their fiscal responsibility in this matter is greater than yours.

For you to afford CASp would be nearly an “unreasonable hardship” in itself. We wouldn’t recommend that you get a CASp survey. If anything, you should try and get the property management company to get a CASp survey of the entire strip mall, that way all the businesses, including yours, can be covered. If they refuse to get CASp then your best bet is to educate yourself with an access survey so you can at the very least fix the most dangerous problems.

So what can you expect to pay for?

Your biggest ADA costs will probably be

  • lowering a counter
  • installing grab bars…
  • maybe lowering a urinal and a mirror
  • or replacing a sink.
  • You might have to replace or modify some door hardware as well.

We would recommend that you get our recommendation letter. It lists the important issues even if it doesn’t carry the protection and liability that comes with a CASp survey. The cost of everything here, including the letter and the fixes is, broadly speaking, maybe $1,000. Also, don’t forget: As a small entity, you do get the tax credit of up to 50% on ADA compliance from IRS form 8826. Our recommendation letter is covered in that amount.

This doesn’t mean that after you’ve done this work that you’re off the hook for ADA compliance. You still need to comply with the other ADA violations in your parking and restrooms. Work with your property management company. Talk with your neighbors. If you can get them to hire a CASp surveyor to do all the stores, all the better. Get them to fix the parking the restrooms too. After all, they own the property. It will be good for all their future tenants.  For them, it’s a solid investment.

If your property manager is unresponsive or unwilling to do ADA work (they may incorrectly think that the facility is already compliant) then they are exposing you to a huge lawsuit risk. Armed with our recommendation letter or exposure report, you can make your property manager aware of the issues in a registered letter. This may significantly reduce your liability in itself by leaving a paper trail that you are exercising good faith, and attempting to do what is right to comply.

With the recommendation letter, you can and should fix the readily achievable items anyway, they don’t cost that much — and they reduce your liability up to 87%.

Your best long term ADA Compliance solution is to move to a location that IS ADA Compliant. How can you tell if they are ADA compliant? Make them get an exposure report to list everything, or ask to see their CASp report.

Case 2: You’re an attorney at a law firm
You work in an office building. You lease your office suite. Your private practice makes somewhere between $250,000 and $500,000. You’re still not alone in your responsibility for the parking lot, because it’s shared. Additionally, the restrooms you have are private. You don’t allow any public access to them. Any of your clients looking to use the restroom would borrow your key and use the restrooms in the hallway. The lobby, elevator and restrooms are all shared between you and the other office tenants.

What are your liabilities?

Even though the liability is shared, you are still liable for everyone coming from the public right of way, or parking, traveling through the lobby and the elevators and using all the public areas and talking through your office door into any conference room. If you are named in a lawsuit, you will have to deal with it, which probably does mean settling for damages even if you are not the only entity responsible.

You can afford to make readily achievable fixes. We would make the same recommendation as case 1. Your property management company should get a CASp inspection to protect all the businesses inside the office building. Barring that, if they are unresponsive you can get a recommendation letter for everything affecting your office. You should then fix the items you are directly responsible for and forward everything else in a registered letter to your property management company. This way, their responsibility is made clear. If they are still unresponsive, your best long term option is to move to a location that is accessible.

Case 3: A Small Franchisee
Imagine you own a small successful franchisee store, maybe two of them. They could be McDonald’s, or Long John Silver — it doesn’t matter. Your cash flow is close to $1,000,000. You can afford much more, in terms of fixing things. So your threshold for unreasonable hardship is much higher. You can do all the “readily achievable” fixes. You can also afford CASp. We would recommend that you get it. The advantages are many, including a 90 day stay (meaning the opposing attorney can’t rack up fees during those 90 days) and expedited arbitration (also lowering your court fees). These things, of course, won’t deter someone who really wants to sue you because they are trapped in your restroom over night. CASp will deter a serial litigant who wants a quick and easy ADA lawsuit threat and a fast no-hassle settlement. (No hassle for them).

So, if you own the store, or not, you are in a stand-alone store.  You have parking that is unique to your store.  This means that even if you are leasing, you are even more responsible for the parking.  Not only that, you can still afford to get the parking that services your store re-striped.

You might qualify for IRS Form 8826 if you make less than $1,000.000.00 in gross receipts and have no more than 30 full time employees. The restrooms could be a little more difficult, if they are older. If the restroom walls are load bearing you might not be able to afford moving them right away. So that item would have to be deferred, so the cost of ADA compliance is spread over two or three years. If you qualify for IRS Form 8826, you can get a tax credit so your cost will be much lower.
After getting a FULL ADA inspection of everything you can then start to repair everything. You will spend, maybe $10,000 on accessibility and over the course of two or three years fix everything. At the end of three years, you will have a brand new looking restroom, doors and counter to show off to your customers.

 

Case 4: A Mid-sized Property Management Firm
You manage many properties, maybe 50 or 200. You have several offices all over the place. Your financial resources are deeper. You don’t qualify for IRS Form 8826, although if you have subsidiaries, they might. You’ll have to check with your accountants. 

Your tenants have been probably been hit with ADA Lawsuits before. Your tenants may or may not have notified you, simply because they were unaware of your shared responsibility. Nonetheless, responsible property managers want to do the right thing. You’ve probably had some ADA surveys performed, but they were not full ADA inspections.  You haven’t gotten a CASp Report because you haven’t heard of it.

You should get CASp for all your properties. Since CASp determines a timeline, you should fix as much as you can according to a timeline, deferred over a few years (I can’t really estimate in general how much you should spend but you should fix the issues) and then advertise your sites as being ADA compliant. Post the CASp certificate on all your storefront windows. If you don’t, you are bound to start losing tenants as they become aware that they are leasing properties not in compliance with the law.

But what about the long-term ramifications? Smart real estate agents will get an ADA survey for all the properties they have an interest in. ADA Compliance is a great fear among many current leasees. Not only that, but there is some interest in the state assembly to forward some ADA liability to Real Estate Agents who lease or sell property that isn’t ADA compliant without full disclosure.

Better get a jump on compliance.

For every property a real estate agent deals with, your agents should order Exposure Reports of property they are looking to broker or CASp surveys on property they manage, so they can leverage the cost of ADA compliance into the leasing, selling (or buying) price.

Now, wouldn’t that be the savvy thing to do? After all, I’m sure the other agents have no idea what the enormous cost of ADA compliance could possibly be…

Conclusion: ADA Compliance is not Fiscally Impossible
So now that you’ve read this, you can begin to put a price tag on accessibility. No one is responsible for fixing all the ADA violations in the world, just your corner of it. And if you are a tiny shop struggling to keep your doors open, you should get together with your neighbors. Get together and bug your property management company. Tell them they are putting you all at risk by ignoring these issues.

After all, fixing a few hundred dollars worth of issues is better than getting a lawsuit. After you’ve got the lawsuit, you have to deal with it on their terms, which won’t be to your favor. You’ll be court ordered to fix this stuff anyway — on top of throwing money away on a settlement.

We’ll even give you a discount for not making us drive out there separately. You can forward your parking issues and your major liability issues to your property manager. If you decide to upgrade your survey to CASp you may get a significant discount.

If your property manager decides not to do anything at least get us to look at your stores collectively. That way you can protect yourself before you move to a property manager who actually wants tenants.

What are you waiting for? Find out how inexpensive ADA compliance can be! You already have an idea now.

CASp Architects are waiting!  We have a variety of ADA compliance products to fit your needs.

 

Call us at 866 982 3212, extension 1! Or email us at help@ytaccess.com. We will be happy to assist you. Our advice is always free.

ADA Compliance Options: Why CASp?

| Monday, March 14th, 2011 | 1 Comment »

For those of you who don’t know, CASp stands for Certified Access Specialist. The short version of this history is that the California Senate passed a bill, SB 1608, which altered the nature of ADA compliance requirements for businesses.  This was an ambitious bill, pushed forward mainly by the California Chamber of Commerce.  SB 1608 has far reaching effects.  This article discusses some of the benefits of SB 1608 weighed against some of the added liabilities for business owners.

If you want a more detailed history of SB 1608, you can go to the California Chamber of Commerce ADA Reform page.  We’ve extracted some of the key points from their website, as they are quite broad of this lobbying effort.

I assume that you’re a business owner.  If you aren’t, then you’re probably either an attorney, a contractor or an architect (or an activist).  Either way, you’re interested in how SB 1608 impacts businesses, places of public accommodation as defined under Title 3 of the ADA.

 

Let’s start with the liabilities.  Understanding the benefits are less meaningful if you don’t know the liabilities.

I assume you’re already familiar with the responsibilities of ADA Compliance at your place of business. Basically, your business must work towards becoming 100% ADA Compliant.  There are a few things to consider in the course of this, like what kind of ADA inspection do you want to get, or when you will fix certain items.  Otherwise, the liabilities listed here are what CASp adds to your responsibility.  It’s important to note that ADA inspections are only the first step towards ADA Compliance.  An inspection, not even a CASp inpsection by itself, does ANYTHING to subtract from your duties to comply with the law.  What a complete ADA inspection does, is demonstrate good faith effort.  Inspections also are useful for contractors and architects who are not generally well versed in ADA compliance.

 

Liabilities of CASp Inspections

CASp and SB 1608 was passed only to protect businesses interested in ADA Compliance.  There are two main considerations.

1. A CASp inspection requires that a timeline be implemented as to when items are to be made in compliance.  There are no standard guidelines for how to assess this — as such a timeline is largely dependent on the financial resources of the entity in question.  This means that any CASp inspector needs to work with the entity in determining an accurate guide as to when items should be fixed.

If the timeline is too strict, the entity may fall behind fixing these items and in the case of an ADA lawsuit, the entity will look faulty.

If the timeline is too lax, in the case of an ADA lawsuit, the entity could have fixed certain times and remained needlessly liable for that time.

Remember the point of CASp is to become ADA compliant.  If you get a CASp Report and then do nothing, you will become more liable over time.  If you display the CASp certification, considering no one else has one, you’ll probably deter ADA lawsuits for a time.  After a time, having the CASp certification with obvious ADA violations will get you sued.  Then you’ll look extremely worse in court for not complying at all.

2.  CASp can be quite expensive, because of the added liabilities to the CASp Inspector in determining the timeline.  The average cost of CASp is $2400.

3. This is not a liability, but it is worth mentioning:  CASp goes into effect only if the site is sued AFTER getting a CASp inspection.  No protection is offered retroactively.

4. A CASp licensed individual is required to be included in building departments.  The original time line stated that such an individual was to be included as of July in 2010, but this date has been moved into 2014.  CASp is meant to bridge State Building Code and ADA guidelines, as most contractors and architects are not well versed in Federal Civil Code.  While having a CASp individual does not offer a significant benefit, as local ordnances only have jurisdiction over State law, not Federal Civil Law.  A CASp individual in the local building department is a resource to local businesses but as a state employee such an individual is limited to advising about the State regulations.  If you want the benefits of CASp, you’d still have to hire them outside of their normal building department job and pay them the required amount.

 

Advantages of CASp

The California Chamber of Commerce has listed 10 benefits of SB 1608 for businesses.  We have divided these benefits into two groups, for those who get CASp and everyone else.  This is the first section.

1.  Part of the fear of ADA compliance is the cost.  CASp helps a business focus on what they can pay for.  Remember, the timeline is there to help businesses comply within a reasonable time frame.  If a CASp inspector understands approximately how much a business can afford for ADA compliance per month, the cost of compliance can be spread out over time to achieve 100% ADA Compliance.

2.  CASp certification is offered for all sites, even if they are not yet compliant.  This certification can be posted on a store window to deter litigants looking for an easy target.

3. CASp tries to help businesses avoid expensive lawsuits.  To this end, CASp allows businesses to request a 90 day stay.  This means that opposing attorney can’t rack up expensive attorney fees during discovery, while you decide what to do (accept their settlement or not).

 

Benefits of SB 1608

The effects of SB 1608 offer several included benefits for business owners whether they get CASp inspected or not.

1. Litigating attorneys who demand money must also include a statement advising the business what their rights are.  So if you haven’t got CASp, you won’t be able to request the 90 day stay.

2.  SB 1608 limits the amount of the damages to $4,000 per visit.  Furthermore these damages must be related to the plaintiff and explained how they injure the plaintiff.  For example, having detectable warnings helps protect those who are legally blind.  Someone in a wheelchair probably won’t be able to sue for a lack of them.  Grab bars would effect such a plaintiff, however, so they will be able to make a complaint about that.

3. A clause is included in SB 1608 to help lessen the attorney’s fees in a settlement.

4. CASp individuals are going to be more common, at least loosely tied to local building deparments (see item #4 under liabilities of CASp).

5. Architects and contractors will be required to learn about the ADA as part of their continuing education so they can be at least aware of what they don’t know.

6. A State Commission is formed to help interface the Disabled Rights and interests of Building Departments.

7. Cal Chambers also lists “new deadlines” for State building code compliance with ADA requirements.  The Division State Architect was already doing this with the Department of Justice.  It’s important though, to have a codified process as the building code is updated every three years.  The ADA is also updated but less frequently.

 

Consequences of CASp and SB 1608

CalChambers does recognize the need for some coordination between advocacy groups and the interests of the status quo, but as a business organization, they tend to lean towards the interests of big business.  Much of what SB 1608 does is to help entities that have cash take advantage of SB 1608′s lowering of the cost of lawsuits.  Smaller businesses that do not have funds must rely on pressuring larger property management firms to help with the cost of ADA compliance.

It’s also important to note that CASp cannot stop lawsuits, they can only help make the process more difficult for litigants. One of the long term consequences of CASp is that as businesses get CASp certification, those who do not have it, or cannot afford it will face a steeper battle as they become easier targets for litigation.

Add onto this that the Unruh Civil Rights Act defines violations of the ADA as acts of discrimination — this verbage has not changed.  Intention is unimportant to this ruling, as proven in so many court cases.  Businesses that do not comply with the ADA regardless of getting CASp or not still carry the steep fines associated with acts of discrimination — $4,000.

This heavy responsibility is to be sure, mostly on businesses right now.  CalChambers and other business groups are bound to spread this liability to other responsible parties, such as architects, contractors and Real Estate Agents.  So it’s important that all responsible parties with an interest in a place of public accommodation help make their site ADA compliant,

ADA Reform however, is not finished.  Much of SB 1608 mentions benefits to business — offering little or no compensation for the rights of the disabled.  You can be sure there will be an increased effort of disabled advocates to have their say as well.

 

All this should be considered in getting an CASp inspection.  For a more of a fiscal view of how to balance these responsibilities with ADA compliance take a look here:

How to put a price tag on your liability.

If you’ve decided that getting an ADA compliance report is for you, congratulations.  Our ADA Consulting Services.

If you have questions or concerns call us at 866 982 3212 extension 1!  Or email us at help@ytaccess.com.  Our advice is always free.

ADA Expert: Yung Kao, CASp and AIA

| Sunday, March 13th, 2011 | 1 Comment »

 

 

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235 main st. alhambra, ca 91801accessolution@att.netdirect number: 626.209.9709

(For more information about ADA Pricing)

 

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Yung Kao

 

Yung Kao, AIA, CBO, CASp

Certified Access Specialist

ADA & Cal Access

 

Mr. Yung Kao is a California Certified Access Specialist (CASp) and a member of the Certified Access Specialist Institute (CASI). He is an ADA and California access-compliance consultant. His typical services include CASp Inspection for existing facilities, plan review or construction inspection for new developments, and expert witness in accessibility litigations. Yung received his Masters Degrees in Architecture and in Urban Planning from U. C. Berkeley.

Yung brings tremendous knowledge and experience to the field of accessibility compliance from his multi-track career as a design professional and a code administrator. He is an NCARB licensed architect, registered with the States of California, Nevada and Hawaii. He is also a CABO Certified Building Official. He was the Chief Building Official for the City of Monterey Park for 20 years. Prior to joining the city, Yung had six years architectural practice in Santa Monica and Los Angeles, and was involved in such projects as the Santa Monica Bank office building, Universal Studio Hilton and Tower, renovation of shopping centers, and tenant improvement for restaurants and banks.

A building code expert, Yung is author of numerous code changes adopted by the Uniform Building Code and the International Building Code. He served on ICBO’s Special Inspection Certification Committee, which oversaw ICBO’s Special Inspection certification exams nationwide. He was a member of the California 2000 Code Partnership Committee. He has been active with the ICC L.A. Basin Chapter code committees, and has chaired the Fire Safety committee, Use & Occupancy committee and several subcommittees in the L.A. Regional Uniform Code Program (LARUCP) which was set up to promote uniformity in code interpretation and code amendment for a consortium of 89 cities in the Los Angeles region. Yung was recognized in 2001 by the L.A. City Quality and Productivity Commission for his contribution to furthering the goals of LARUCP.
Combining the backgrounds of a design professional and a code administrator, Yung is able to look at existing access barriers with an eye on various scenarios of remediation. From this solution-oriented perspective he provides building owners and business operators a unique CASp Inspection service that offers insightful analyses of existing nonconformities and realistic remediation recommendations.
Mr. Kao holds several code-related certifications, including:

DSA Certified Access Specialist (CASp-261)
CABO Certified Building Official (No. 1,292)
ICBO Certified Plans Examiner (No. 20,567)
ICBO Certified Building Inspector (No. 28,540)

Additionally, we have done some presentations with Mr Kao.  He is quite knowledgeable as to how businesses and building departments should approach CASp, and the ADA.

For more information about CASp please see our ADA FAQ or the ADA links to more information.

If you have any further detailed questions feel free to call us at 866 982 3212 or email us at help@ytaccess.com