Part one of Understanding the ADA (Americans with Disabilities Act of 1990) highlighted the difficulty many commercial property and business owners have in understanding and implementing the ADA.
Part two highlighted how to determine if your property complies, the benefit of hiring a Certified Access Specialist (CASp), and checking your lease to determine ADA responsibility of the tenant premises.
In this article, we will answer some specific questions.
What is a “readily achievable barrier” removal?
The ADA states that facilities constructed prior to January 26, 1992, must remove barriers that are “easily accomplishable and able to be carried out without much difficulty or expense.” After receiving an inspection from a CASp, an owner of a pre-ADA facility should determine what improvements are readily achievable. If an improvement is not readily achievable at this time, a business owner still must make goods and services available to individuals with disabilities through alternate means, and develop a plan for compliance in the future.
Can a CASp issue a certificate that my facility is compliant?
No, there is no certification of a facility, only the issuance of a disability access inspection certificate which is a record that a CASp has performed an access compliance evaluation of your facility.
I hired a CASp and received the access compliance evaluation report. What is next?
If you need to correct a violation to meet applicable construction-related standards, a CASp will work with you to establish a required timeline to complete the improvements. A re-inspection after improvements is not required, but is advisable to make sure the improvements were completed correctly.
Once your facility meets applicable construction-related standards, be sure to maintain the compliance of your facility. Keep the inspection report confidential and in your records. You may share the disability access inspection certificate as proof a CASp has inspected your property.
What is a “qualified defendant” status?
By having an inspection by a CASp, you are a “qualified defendant” and are entitled to the legal benefits of a 90-day stay and early evaluation conference if an accessibility claim is filed against you. “Qualified defendant” status is maintained unless a future alteration is performed on the inspected area.
What is the downside of not addressing accessibility issues at my commercial property?
Equal access for all individuals to public accommodations is mandated by state and federal law. You are vulnerable to an accessibility lawsuit if you do not address accessibility issues at your facility.
In California, the Unruh Civil Rights Act allows for any ADA violations to be categorized as a civil rights violation with a minimum statutory penalty of $4,000 dollars plus attorney’s fees. These expenses do not include the cost of the construction-related improvements.
How do I find a CASp and how much does an inspection evaluation cost?
You can go to the State of California Department of General Services, Division of the State Architect (DSA) website and select “List of Certified Access Specialists.” The cost of CASp services varies depending on the size and number of public accommodation areas of your facility.
Burt M. Polson, CCIM, is an active commercial real estate broker. Reach him at 707-254-8000, or [email protected] Sign up for his email newsletter at BurtPolson.com.