What is the purpose of SB-1608?
The purpose of the recently enacted SB 1608 Disability Access Law Reform is to increase compliance with equal accessibility laws but it also provides protection against unwarranted lawsuits* in California. This protection is in the form of a CASp issued inspection report which provides proof that buildings and surrounding areas have been surveyed by an expert in disability access laws.
The CASp qualification is awarded by the California State Architect only after candidates meet stringent requirements of knowledge of accessibility laws and experience of their practical application.
The CASp Inspection Report is a document which describes the legal accessibility requirements for a particular site, whether the requirement has been met and if not, provides solutions and a reasonable time frame to make necessary changes for compliance.
Upon completion of a CASp Inspection, our CASp inspector determines the site to be free from construction related barriers, will issue a state numbered CASp Certification to our client with a full “Casp-Inspected” report within 21 days of the site survey inspection. This certifies that the site and building or space has been inspected by a CASp inspector. The certificate will read “Access Inspected”.
If our CASp inspector discovers barriers or non-compliance he/she will provide a “CASp determination pending” report and a state numbered certificate within 21 days of the site survey inspection. CASp determination pending means there where accessible barriers discovered and noted during the CASp inspection. Client will then coordinate with their CASp inspector to develop a program to address and resolve barrier removal as efficiently as possible over a reasonable amount of time. Once all barriers are corrected to the fullest extent possible, then the certification “CASp-Inspected” new report will be issued after a re-inspection** and verification construction related barriers have been removed. The certificate will read “Access Inspected”.
It doesn’t matter whether your report is designated as “CASp determination pending” or “CASp-Inspected” the special legal rights are granted immediately on the date of the Access Compliance Inspection and the “Access Inspected” certificate will be issued on the date of first inspection and will read “Access Inspected”. Keep in mind that any barriers discovered do not have to be resolved immediately to be granted the special legal rights in California or to receive the Access Inspected Certificate.
Once you’re building and/or business is CASp inspected you are then granted special legal rights. If you are then named in an accessibility related lawsuit*, you may request the court to place a 90 day stay (or hold) on the lawsuit. This way the plaintiff cannot rack up hours of legal fees pressuring you into settling. It also means that you can request an early evaluation conference with a judge or commissioner who has received specialized training in accessibility laws and requirements who will review the case and any claimed violations. In essence, these special legal rights may have the effect of eliminating most (if not all) of the frivolous accessibility discrimination claims or lawsuits. The cost of certification is a small fraction of the cost of the average lawsuit or settlement. In addition, an accessible property is a more marketable property.
*Special Legal Rights apply only to local, state lawsuits and do NOT protect against Federal Lawsuits however, having your site CASp Inspected will be beneficial IF you voluntarily (before a lawsuit is filed against you) get an accessibility inspection “Access Compliance Survey”.
**Re-Inspection fees apply. A re-inspection site visit and New Report must be issued to achieve “Casp Inspected” status.
See Senate Bill No 1608 for information about construction related accessibility, Certified Access Specialist (CASp), CASp-Inspected and CASp determination pending. Below is part of Senate Bill No 1608 for reference.
55.52. (a) For purposes of this part, the following definitions apply:
(1) Construction-related accessibility claim means any civil claim in a civil action with respect to a place of public
accommodation, including, but not limited to, a claim brought under Section 51, 54, 54.1, or 55, based wholly or in part on an alleged violation of any construction-related accessibility standard, as defined in paragraph (6).
(2) Application for stay and early evaluation conference means an application to be filed with the court that meets the requirements of subdivision (c) of Section 55.54.
(3) Certified access specialist or CASp means any person who has been certified pursuant to Section 4459.5 of the Government Code.
(4) CASp-inspected means the site was inspected by a CASp and determined to meet all applicable construction-related accessibility standards pursuant to paragraph (1) of subdivision (a) of Section 55.53.
(5) CASp determination pending means the site was inspected by a CASp and is pending a determination by the CASp that the site meets applicable construction-related accessibility standards pursuant to paragraph (2) of subdivision (a) of Section 55.53.
(6) Construction-related accessibility standard means a provision, standard, or regulation under state or federal law requiring compliance with standards for making new construction and existing facilities accessible to persons with disabilities, including, but not limited to, any such provision, standard, or regulation set forth in Section 51, 54, 54.1, or 55 of this code, Section 19955.5 of the Health and Safety Code, the California Building Standards Code (Title 24 of the California Code of Regulations), the Americans with Disabilities Act of 1990 (Public Law 101-336; 42 U.S.C. Sec. 12101 et seq.), and the Americans with Disabilities Act Accessibility Guidelines (Appendix A to Part 36, Title 28, Code of Federal Regulations).
(7) Place of public accommodation has the same meaning as public accommodation, as set forth in Section 12181(7) of Title 42 of the United States Code and the federal regulations adopted pursuant to that section.
(8) Qualified defendant means a defendant in an action that includes a construction-related accessibility claim that is asserted against a place of public accommodation that met the requirements of CASp-inspected or CASp determination pending prior to the date the defendant was served with the summons and complaint in that action. To be a qualified defendant, the defendant is not required to have been the party who hired any CASp, so long as the basis of the alleged liability of the defendant is a construction-related accessibility claim. To determine whether a defendant is a qualified defendant, the court need not make a finding that the place of public accommodation complies with all applicable construction-related accessibility standards as a matter of law. The court need only determine that the place of public accommodation has a status of CASp-inspected or CASp determination pending.
(9) Site means a place of public accommodation.
(b) Unless otherwise indicated, terms used in this part relating to civil procedure have the same meanings that those terms have in the Code of Civil Procedure.
55.53. (a) For purposes of this part, a certified access specialist shall, upon completion of the inspection of a site, comply with the following:
(1) For a CASp-inspected site, if the CASp determines the site meets all applicable construction-related accessibility standards, the CASp shall provide a written inspection report to the requesting party that includes both of the following:
(A) An identification and description of the inspected structures and areas of the site.
(B) A signed and dated statement of compliance that includes both of the following:
(i) A statement that, in the opinion of the CASp, the inspected structures and areas of the site meet construction-related accessibility standards. The statement shall clearly indicate whether the determination of the CASp includes an assessment of readily achievable barrier removal.
(ii) If corrections were made as a result of the CASp inspection, an itemized list of all corrections and dates of completion.
(2) For a CASp determination pending site, if the CASp determines that corrections are needed to the site in order for the site to meet all applicable construction-related accessibility standards, the CASp shall provide a signed and dated written inspection report to the requesting party that includes all of the following:
(A) An identification and description of the inspected structures and areas of the site.
(B) A statement that, in the opinion of the CASp, the inspected structures and areas of the site need correction to meet construction-related accessibility standards. This statement shall clearly indicate whether the determination of the CASp includes an assessment of readily achievable barrier removal.
(C) An identification and description of the structures or areas of the site that need correction and the correction needed.
(D) A schedule of completion for each of the corrections within a reasonable time frame.
(b) For purposes of this section, in determining whether the site meets applicable construction-related accessibility standards when there is a conflict or difference between a state and federal provision, standard, or regulation, the state provision, standard, or regulation shall apply unless the federal provision, standard, or regulation is more protective of accessibility rights.
(c) Every CASp who conducts an inspection of a place of public accommodation shall, upon completing the inspection of the site, provide the building owner or tenant who requested the inspection with the following notice, which the State Architect shall make available as a form on the State Architects Internet Web site:
NOTICE TO PRIVATE PROPERTY OWNER/TENANT:
YOU ARE ADVISED TO KEEP IN YOUR RECORDS ANY WRITTEN INSPECTION REPORT AND ANY OTHER DOCUMENTATION CONCERNING YOUR PROPERTY SITE THAT IS GIVEN TO YOU BY A CERTIFIED ACCESS SPECIALIST. IF YOU BECOME A DEFENDANT IN A LAWSUIT THAT INCLUDES A CLAIM CONCERNING A SITE INSPECTED BY A CERTIFIED ACCESS SPECIALIST, YOU MAY BE ENTITLED TO A STAY (TEMPORARY STOPPAGE) OF THE CLAIM AND AN EARLY EVALUATION CONFERENCE. IN ORDER TO REQUEST THE STAY AND EARLY EVALUATION CONFERENCE, YOU WILL NEED TO VERIFY THAT A CERTIFIED ACCESS SPECIALIST HAS INSPECTED THE SITE THAT IS THE SUBJECT OF THE CLAIM. YOU WILL ALSO BE REQUIRED TO PROVIDE THE COURT AND THE PLAINTIFF WITH A THE COPY OF A WRITTEN INSPECTION REPORT BY THE CERTIFIED ACCESS SPECIALIST, AS SET FORTH IN CIVIL CODE SECTION 55.54. THE APPLICATION FORM AND INFORMATION ON HOW TO REQUEST A STAY AND EARLY EVALUATION CONFERENCE MAY BE OBTAINED AT http://www.courtinfo.ca.gov/selfhelp/ . YOU ARE ENTITLED TO REQUEST, FROM A CERTIFIED ACCESS SPECIALIST WHO HAS CONDUCTED AN INSPECTION OF YOUR PROPERTY, A WRITTEN INSPECTION REPORT AND OTHER DOCUMENTATION AS SET FORTH IN CIVIL CODE SECTION 55.53. YOU ARE ALSO ENTITLED TO REQUEST THE ISSUANCE OF A DISABILITY ACCESS INSPECTION CERTIFICATE, WHICH YOU MAY POST ON YOUR PROPERTY IF IT IS FOUND TO MEET APPLICABLE CONSTRUCTION-RELATED ACCESSIBILITY STANDARDS.
(d) Commencing July 1, 2009, all inspections of a place of public accommodation that relate to permitting, plan checks, or new construction, including, but not limited to, inspections relating to tenant improvements that may impact access, shall be conducted by a building inspector who is a certified access specialist. To timely comply with this provision, a local agency shall employ or retain a sufficient number of building inspectors, and in no event less than one, who are certified access specialists. A local government may charge or increase inspection fees to the extent necessary to offset the costs of complying with this subdivision, and revenues generated from the charge or increase shall be used solely to offset the costs incurred to comply with this subdivision. An inspection by a building inspector who is certified as an access specialist shall be treated the same as any other inspection by a CASp and shall not be entitled to any additional legal significance.
(e) (1) Every CASp who completes an inspection of a place of public accommodation shall, upon a determination that the site either meets applicable construction-related accessibility standards pursuant to paragraph (1) of subdivision (a) or is CASp determination pending pursuant to paragraph (2) of subdivision (a), provide the building owner or tenant requesting the inspection with a numbered disability access inspection certificate indicating that status the site has been inspected by a certified access specialist. The disability access inspection certificate shall be dated and signed by the CASp inspector, and shall contain the inspectors name and license number. Upon issuance of a certificate, the CASp
shall record the issuance of the numbered certificate and, the name and address of the recipient, and the type of report issued pursuant to subdivision (a) in a record book the CASp shall maintain for that purpose.
(2) Beginning March 1, 2009, the State Architect shall make available for purchase by any local building department or CASp sequentially numbered disability access inspection certificates that are printed with a watermark or other feature to deter forgery and that comply with the information requirements specified in subdivision (a). The certificate shall be in substantially the following form: (3) The disability access inspection certificate may be posted on the premises of the place of public accommodation, unless, following the date of inspection, the inspected site has been modified or construction has commenced to modify the inspected site in a way that may impact compliance with construction-related accessibility standards. (f) Nothing in this section or any other provision of law is intended to require a property owner or tenant to hire a CASp. A property owners or tenants election not to hire a CASp shall not be admissible to prove that persons lack of intent to comply with the law.
55.54. (a) (1) An attorney who causes a summons and complaint to be served in an action that includes a
construction-related accessibility claim, including, but not limited to, a claim brought under Section 51, 54, 54.1, or 55, shall, at the same time, cause to be served a copy of the application form specified in subdivision (c) and a copy of the following notice to the defendant on separate papers that shall be served with the summons and complaint:
NOTICE TO DEFENDANT. YOU MAY BE ENTITLED TO ASK FOR A STAY (TEMPORARY STOPPAGE) AND EARLY EVALUATION CONFERENCE IN THIS LAWSUIT.
If the construction-related accessibility claim pertains to a site that has been inspected by a Certified Access Specialist (CASp) and you have an inspection report for that site, you may make an immediate request for a court stay and early evaluation conference in the construction-related accessibility claim by filing the attached application form with the court. You may be entitled to the court stay and early evaluation conference regarding the accessibility claim only if ALL of the statements in the application form are true. The court will schedule the conference to be held within 50 days after you file the attached application form. The court will also issue an immediate stay of the proceedings unless the plaintiff has obtained a temporary restraining order in the construction-related accessibility claim. At your option, you may be, but need not be, represented by an attorney to file the application to request the early evaluation conference. You may obtain a copy of the application form, filing instructions, and additional information about the stay and early evaluation conference through the Judicial Council Internet Web site athttp://www.courtinfo.ca.gov/selfhelp/.
You may file the application after you are served with a summons and complaint, but no later than your first court pleading or appearance in this case, which is due within 30 days after you receive the summons and complaint. If you do not have an attorney, you will need to file the application within 30 days after you receive the summons and complaint to request the stay and early evaluation conference. If you do not file the application, you will still need to file your reply to the lawsuit within 30 days after you receive the summons and complaint to contest it. You may obtain more information about how to represent yourself and how to file a reply without hiring an attorney at http://www.courtinfo.ca.gov/selfhelp/.
If a plaintiff representing himself or herself hires an attorney after the case is filed, you will have 30 days to file an application for a court stay and early evaluation conference after you receive a Notice of Substitution of Counsel, unless an early evaluation conference or settlement conference has already been held. You may file the application form without the assistance of an attorney, but it may be in your best interest to immediately seek the assistance of an attorney experienced in disability access laws when you receive a summons and complaint. You may make an offer to settle the case, and it may be in your interest to put that offer in writing so that it may be considered under Civil Code Section 55.55.