For many business and property owners, the requirements for accessibility compliance in California can appear to be complicate to the point of being completely overwhelming. While many people understand that their business or property that’s open tot he public, needs to comply with the ADA, few if any know what the specific requirements for accessibility compliance are, let alone how the codes and laws apply to their business or property. To help business and property owners understand the requirements and their responsibilities for accessibility compliance, we have prepared the following frequently asked questions that address accessibility compliance issues in California.
Q: How do I find out what the accessibility requirements are for my business or property in California?
A: The requirements for accessibility compliance are determined by the type of facility, the ownership entity and the date of construction. Most commercial properties need to comply with the 2010 ADA Standards for Accessible Design (ADA) and the requirements of the 2016 California Building Code (CBC).
Q: My building was constructed prior to 1992, (when the ADA went into effect) and there may be part of the building which do not meet current accessibility requirements (restrooms with less than adequate wheelchair turning space, non-compliant parking stalls etc.), what do I need to do to comply with California accessibility requirements?
A: Our best recommendation would be to have a CASp professional conduct an inspection to determine what, if anything meeds to be corrected. At a minimum, it’s important to do what’s possible to facilitate access to your place of business. It’s important to note, particularly for older buildings, that it may not be possible to provide full compliance due to the configuration and physical constraints of the existing building. There are provisions with both the ADA and the CBC which allows for issues which may not be either “readily achievable” or “technically feasible.” Obtaining a CASp inspection and making a good faith effort to address accessibility issues will provide your business with the best possible protection from a potential ADA lawsuit.
Q: I’m planning to remodel part of my business and the building it occupies, what do I need to do to comply with California accessibility requirements?
A: It depends on the scope of the remodel. If the construction value of the remodel exceeds $161,298, California code requires an upgrade to full accessibility compliance for the building entry, path of travel to the area of remodel and restrooms serving the remodel. If the value of construction is less than $161,298, then 20% of the value of construction must be spent on accessibility upgrades, addressed in the following order:
- accessible entrance
- accessible route to area of remodel
- at least one accessible restroom for each sex
- accessible telephones
- accessible drinking fountains, and when possible
- accessible parking, storage and alarms
Q: I know that my business needs to comply with the California Accessibility requirements, but in the current economic climate, I just can’t afford to make whatever improvements might be required.
A: Yes, times are tough, but the cost associated with protecting your business from an ADA lawsuit are insignificant in comparison to the potential exposure of attorney fees, court costs, correction expenses and damages associated with a potential ADA lawsuit.
Q: When my retail store was constructed in 2002, I understood that it met the accessibility requirements in effect at that time. I also understand that the requirements for accessibility compliance have changed since then. Am I required to update or make changes to my store to meet current requirements:
A: If your store met the accessibility requirements in effect in 2002 (which it most likely did, if the store was constructed according to code), then you should be fine. Any subsequent changes or revisions would have to comply with the accessibility requirements in effect at the time of the revision.
Q: My business has receive a notice of non-compliance from an attorney who is demanding several thousand dollars because of an accessibility compliance issue. What should I do?
A: If you receive a complaint and demand for money regarding an accessibility issue, State law requires that the person issuing the complaint also provide a form indicating, “You are not required to pay any money unless and until a court finds you liable. Moreover, RECEIPT OF THIS ADVISORY DOES NOT NECESSARILY MEAN YOU WILL BE FOUND LIABLE FOR ANYTHING.” You have the right to seek assistance or advise, regarding a complaint or demand for money, for any person of your choosing and no one may instruct you otherwise. Your best interest may be served by seeking legal advise or representation by an attorney. the local bar association in your county can provide information on attorneys familiar with disability law in your area.
Q: What can I do to protect my business from an ADA lawsuit:
A: The best and most cost effective way to protect your business from an ADA lawsuit, is to have a Certified Access Specialist (CASp) inspect your property and provide you with a report identifying any issues requiring correction and a certificate that confirms your property has been inspected for access compliance. It’s important to understand that both the ADA and the CBC only require correction of issues which are “readily achievable”, which is defined as, “easily accomplishable and able to be carried out without much difficulty or expense.” In addition to identifying “readily achievable” issues for correction, a CASp inspection and certification, provides time to make corrections and protects a business owner by establishing an intent to address required accessibility issues.
Q: What is the enforcement mechanism for accessibility compliance in California:
A: Unfortunately, the primary enforcement mechanism for accessibility compliance in California is litigation by private individuals. California’s Unruh Civil Rights Act makes any violation of the ADA a civil rights violation with a minimum statutory penalty of $4,ooo, plus attorney’s fees. Some attorneys, in fact, make their living specializing in ADA lawsuits. A well know Sacramento attorney has filed over 1,000 ADA lawsuits, receiving average settlements of between $4,000 and $6,000 per case.
Q: What’s the potential downside of not addressing accessibility issues at my business?
A: The potential downside starts with a minimum of $4,ooo out of pocket in statutory damages, with additional attorney fees, before you can even start addressing issues that need to be corrected. A CASp inspection initiated prior to an ADA lawsuit will keep that $4,000 in your pocket.
Q: What is a CASp inspection and what are the benefits of having a CASp inspection of my business or property?
A: A CASp inspection identifies “readily achievable” accessibility issues for correction which are, “easily accomplishable and able to be carried out without much difficulty or expense.” A CASp inspection also provide a reasonable time frame to address any required issues.