The ADA is a Civil Rights Law which requires that buildings and facilities that provide goods and services to the public, must be accessible to individuals with disabilities. Buildings and alterations constructed after 1992 must comply with the requirements of the ADA. Buildings and facilities constructed prior to 1992, are required to make changes to facilitate accessibility that are “readily achievable”, which is defined by the ADA as, “easily accomplishable and able to be carried out without much difficulty or expense.”
In addition to the ADA, California has it’s own requirements for accessibility compliance, which are included in the California Building Code. The California requirements are, in many cases, more stringent than the Federal requirements of the ADA. Typically the most stringent requirement applies.
Enforcement of the ADA, is typically left to private individuals and by necessity their attorneys. When an individual with a disability encounters a condition that inhibits their access or use of a building or facility in 49 states other than California, they are able to file suit and obtain correction of the condition. If an individual with a disability encounters the same condition in California, they are immediately eligible for $4,000 in statutory damages under California’s Civil Code Section 52, which makes any violation of the ADA (no matter how small) a violation of an individual’s civil rights. This has unfortunately created a significant cottage industry in California, where attorneys (operating under the umbrella of “facilitating access for the disabled”) will go after businesses with ADA violations, to simply pocket the $4,000 in statutory damages with an additional couple of thousand for attorney’s fees.
In an attempt to limit these practices, California recently enacted Senate Bill 1608 which was intended to promote increased compliance with accessibility requirements and reduce the unwarranted litigation that doesn’t advance that goal.
SB 1608 also authorized the the creation of Certified Access Specialists, who have the authority to inspect buildings and facilities for accessibility compliance and issue a certificate indicating that a facility has been inspected and that any “readily achievable” accessibility issue are in the process of being addressed.
If a building or facility has been inspected by a Certified Access Specialist, and is subsequently the subject of an ADA lawsuit, the owner of the property can request a “stay” of proceedings for 90 days, which stops the legal process and provides an opportunity for the plaintiff and defendant to resolve whatever issues may need to be addressed. An inspection by a Certified Access Specialist won’t guarantee that a property will not be subject to an ADA lawsuit, but it will significantly reduce the likelihood that an ADA attorney will go after the property looking for $4,000 in statutory damages.