There is a misconception regarding what is ADA [American Disabilities Act] Compliance is and how as a property owner in California to achieve it. I have written several articles in the past for the AOA because I am constantly surprised at the amount of incorrect information out there for the public – especially for those property owners who own different types of rental or commercial property in California. The focus of this article is to reach AOA’s well-educated property owners and give a professional game plan on how to protect their property proactively before a potential lawsuit happens and they are forced to correct violations in a hurry in order to settle.
To have a complete understanding of how the ADA laws effect property owners in California it takes an expert. The Construction Related Accessibility Standards of California (California Civil Code sections 5-55) isn’t easy reading. I find that most contractors are not skilled or educated enough to design a custom ADA plan for each individual property because ADA Compliance is not simple to design. There is no such thing as a cookie-cutter design style when it comes to ADA compliance. Compliance means that an inspector gets down on his knees with a level to double check cross slopes which means that ADA compliance is extremely precise. Every day, I answer calls from potential clients who are reaching out because they had no idea what they need to do or how to be proactive to become ADA Complaint and to protect their property.
I have found that most property owners in California believe for a variety of reasons that their property is protected either by an older building being grandfathered or from a lawsuit because they have already been sued. If your property hasn’t been inspected by an ADA CASp inspector, then it is most likely not compliant nor is it protected from another lawsuit. Most property owners learn about these ADA compliance violations only when they open their mail to learn they are being sued. Then it’s a mad dash to learn everything they can about fixing only the ADA violation items listed in the lawsuit. Sadly, most property owners do NOT due their own due diligence about how to gain full compliance and only look to their attorneys to answer the lawsuit.
An attorney’s job is to respond and to settle lawsuits and in doing so hopefully give you the best advise they have to give however; they are not ADA compliance inspectors, designers or contractors. They address the immediate problem – the lawsuit. However, just fixing items listed in a lawsuit isn’t the direction property owners should be directed. My team includes an ADA attorney because it is important for the client to have all parties involved working together to obtain ADA compliance.
Here is My Opinion to Gain a Clear Path to ADA Compliance:
The first step is always to obtain an expert to inspect your individual property and this should only be done by a CASp inspector. CASp is an acronym for Certificated Access Specialist person who is certified by the Division of the State Architect [DSA]. CASp inspectors create a detailed report of an individual property showing ADA violations and the areas of correction. This is the start for understanding your property and how it is or is not ADA Compliant based on the professional opinion of the CASp inspector.
After a CASp has performed an inspection of your existing facility you will receive two items:
- Disability Access Inspection Certificate
- CASp Inspection Report
A disability access inspection certificate (Certificate) is a record of inspection, not a certificate of compliance. A CASp does not certify that a facility meets compliance with issuance of a Certificate.
Property owners should accept no other certificate offered by a CASp other than a Certificate purchased from the Division of the State Architect. Certificates are blue, sequentially numbered, and bear a golden State of California Seal. The Certificate number is recorded by the CASp in a record book maintained for that purpose and identifies that the certificate is issued in conjunction with a specific CASp inspection report.
You are not required to post the Certificate at the facility that was inspected, but you should have it readily available to offer it as proof that your facility has been inspected. CASp inspection reports, however, should remain confidential and should only be disclosed after seeking the advice of an attorney.
Only an inspection by a CASp, performed in accordance with the Construction-Related Accessibility Standards Compliance Act (CRASCA) can provide “qualified defendant” status. Being a qualified defendant provides legal benefits, in the event of a construction-related accessibility lawsuit.
The second step is to find a qualified contractor who specialized in ADA Compliance. Please keep in mind that not all contractors understand what ADA Compliance is and how to achieve it in order to keep their clients out of an ADA lawsuit. They will tell you that they do and I have heard some crazy stories, telling their clients whatever they can to obtain the business. A qualified contractor first question should be, and I quote, “Do you already have a CASp report and if so, I need a copy, or, if not, then we need to find you a CASp inspector and get the ball started with the CASp inspection and report.”
Once a CASp report is created, only a qualified contractor can design a custom design based on the size and scope of the individual property which specifically addresses each item listed in the detailed CASp report. Keep in mind that this is specialized and not even all architects can design ADA Compliance. Again, I get calls every day from potential clients frustrated with the information and/or design they obtained from an Architect/Contractor that was completely wrong or incomplete. If the property is not brought into ADA compliance correctly then the owner is still open to additional lawsuits.
Simply providing parking stall striping and a sign is not in compliance; in fact, it is a poor choice to just perform correcting only the items mentioned in the lawsuit. When a contractor or property owner provides new striping and signage, they are telling a disabled person it is safe, where in fact, most cases it is not.
Example: most often the slopes are well above 2% max and create an uneven surface for a disabled person. This can lead to a slip and fall lawsuit which could actually put a small businesses out of business. There may be pot-holes or cracks within the access aisle, the access most often does not have a path of travel with detectable warning domes or directional signage. There are multiple items that must occur to achieve proper compliance thus, leaving the owner and business owner free of lawsuits.
Currently, one of the most popular items that owners are being sued for are the detectable warning domes. These are a serious issue, since many contractors are installing surface mounted detectable warning domes. These types of domes are the easiest to install but are a liability months later. They come loose and raise creating a trip and fall situation. We have seen several of these lawsuits starting at $250K. Make sure your contractor knows the difference, most do not and it ends up leaving the property owner in a terrible position. Several owners are being sued because of these cheap yellow detectable domes lifting. There are only a couple of good options available.
Now the third step is the MOST IMPORTANT step towards ADA Compliance. It is the step I find that most contractors and property owners never take. It’s like running a marathon only to stop right before the finish line. After the design is created, City plans are approved, permits are issued and all the construction work is completed. It’s called Re-inspection. It is imperative as a qualified contractor to form working relationships with CASp professionals and to have a solid system in place to have the same CASp inspector who created/issued the CASp report come back after completion of the ADA design/work and have them re-inspect the work and if performed correctly, provide a new report stating no further corrections.
In closing, I feel as if I have given out the secret out of my success in providing a complete ADA TEAM which includes legal counsel, CASp Inspections, ADA designer and contractor with a complete with regards to ADA Compliance however, after fielding so many calls from stressed out property owners, I feel it is my duty as an AOA member as well as an advertiser of this magazine to do my part in the education of the American Disabilities Act importance and the laws that govern it. The shortest and best advice is to be proactive and become compliant as soon as possible. Locate a complete ADA TEAM that can handle the entire process with their TEAM from legal counsel, CASp reports, design, construction, formal plans, permits and re-inspection. The TEAM will save you time and money with much less frustration.