The COVID-19 pandemic has affected everyone in the world – where most of the retail and commercial spaces are hit the hardest. Most of the tenants that have retail and commercial spaces throughout California have been considered non-essential have been forced to close per federal and state orders. Sadly, the tenants and owners of these establishments still continue to face another epidemic of the continual non-ADA (American Disability Act) Compliance lawsuit.
These lawsuits are still progressing at record pace through these troublesome times. Law firms are still busy filing these lawsuits electronically while having the owners/tenants served and reaching settlements without ever reaching a courtroom.
To be proactive, it is always best to consult with a complete ADA TEAM prior to an ADA lawsuit to know what your exposure is. Our team has come across countless owners who believe they are currently ADA compliant since recently, they have had a contractor perform ADA work. I can assure you they are not – in fact, rarely do we find a property that is in full compliance or even partial compliance.
The best course of action is to obtain a CASp report for both exterior and interior. Typically, per commercial leases, the property owner is responsible for the exterior and the tenant is responsible for the interior. It is highly suggested that tenants review their individual leases for liability. If you have chosen a good team, then the ADA Designer/Contractor will review the CASp report and provide the correct design and construction. The part that even the most experienced ADA attorney forgets to mention is that the design and ultimately, the construction is the most critical portion of ADA Compliance.
The “Accessible Route” to all arrival points must be perfect and complete according to CA DSA 2019 CBC 11B for Accessibility and Federal guidelines. There are very few contractors that fully understand the complexity of compliance despite their convincing approach to unsuspecting property owners and tenants. Make sure you are working with a qualified contractor who uses a team approach.
The team approach consists of qualified ADA Designer/Contractor, CASp Inspection and report along with highly skilled legal counsel. This approach provides an open email thread between all, inclusive of owner to be a part of the settlement process.
The Designers will consult with the CASp inspector and vice versa. The Contractor who is also the Designer also consults with all to prepare the correct design. Often times, the Designer will provide formal plans with a permit which adds one more layer of protection from local jurisdiction approval. Make sure to ask a critical question prior to signing a contract with any Design/Contractor – are they qualified to provide formal plans and a permit for ADA compliance in house? This saves time and money. Make sure the design is not being outsourced to another firm since you lose control as a team. Additionally, the Designer/Contractor along with the CASp inspector consults with an ADA attorney to provide accurate field data that allows the attorney to defend your position and possibly reduce a Plaintiff’s settlement demand per their allegations. Having a team approach with all parties working together provides the best solution. If all of these principals are working independently then there is no chance of networking. Be very careful and ask the question “Is the CASp inspector a part of the construction company in any financial way”. You do NOT want the CASp inspector to be involved in the construction because when the work has been completed, you will want a re-inspection to confirm that the work has been performed correctly.
CASp inspectors should not inspect their own work or have a financial position with the construction company since this may be a conflict. It happens all the time however, I don’t believe a CASp inspector should inspect their own work and confirm it is ADA Compliant. Recently, our team ran across a firm that had inspected their own work and provided a report that said all was corrected and it was not. Sadly, the owner of the property was sued twice.
Now, with regards to the actual lawsuit again, our team stresses the importance of a highly skilled ADA attorney. This, too, is also difficult since each attorney will pull you in a different direction. A considerable amount of these attorneys monitor the lawsuits as they are filed and will send the property owner/tenant an introduction letter immediately stating they can settle these cases for them for a flat fee. Often times, this flat fee can be as low as $1,000. Just remember the saying “You get what you pay for.”
A problem seen more and more is that this method consists of the attorney reaching a settlement ONLY per the allegations listed within the lawsuit; therefore, the owner ONLY corrects the couple of items listed in the allegations. Sure, the lawsuit is settled quickly, and your attorney moves on but the possibility for the second and third lawsuits is high. Typically, when the plaintiff files the lawsuit, just a few allegations exist within the lawsuit and they hope you only correct the few allegations since it leaves the door open for the rest of the corrections that are noted in the CASp report for the second lawsuit.
It is imperative you bring the property or business into full compliance as quickly as possible per the corrections in the CASp report – not the allegations in the lawsuit. If you only pay attention to the few allegations and ignore the remainder of corrections noted in the CASp report, the chances of second and third lawsuits are quite possible.
When searching for a good team, you will know when you are on the right track. Their first course of action would be to insist on a CASp report. This is the correct way to identify actual corrections. Do not rely on the city, architects or contractors; insist on a quality CASp report. Again, when working with a CASp inspector, the lowest price is often not in your best interest. There have been countless times that the CASp inspector has been given a specific direction by the attorney with a flat fee to only address the federal corrections since the lawsuit has been filed in federal court. This is a mistake in my opinion, and I believe you should insist that your CASp report cover both Federal and California regulations since they both differ.
Critically review the CASp report for errors along with an attorney to find specific laws to use as a defense to secure the best possible settlement. As the Designer/Contractor, we review the CASp report for errors which adds another layer of protection. If the attorney by passes this task, the report loses the review process by another set of eyes for errors.
The following are bullet points regarding ADA compliance for property owners, commercial and retail tenants, and apartment buildings 15 units and larger:
- Be proactive and order a CASp report prior to a lawsuit from a qualified CASp inspector
- Work with a qualified team that offers free consultation, and a free webinar with their TEAM to answers questions.
- Obtain a CASp report for the exterior and interior of the property
- Consult with an ADA Designer/Contractor for design and cost for corrections
- Consult with an ADA attorney
- Obtain re-inspection CASp reports to confirm that the designer/contractor has performed work correctly.
- Confirm that the ADA Designer/Contractor, CASp inspector and attorney are working as a team for the best settlement and request to be on the email thread to witness the process.