American Disability Act (ADA) Compliance Lawsuits Continue to “Spark” in California
By Anthony C. Guichard, President, ACR Concrete & Asphalt Construction, Inc.
We are halfway through 2022 and the accessibility laws have been in place since 1991, and in truth, that should have been plenty of time (30+ years) for property owners with public accessibility to get their properties into compliance. However, most property owners have just addressed a small portion of the ADA compliance issues at their properties. Most common of issues is a disabled parking stall; however, again I spend a lot of time and energy with my clients explaining that is not ADA compliance. The only way to protect your investments is to be proactive.
Every day approximately 30 plus ADA lawsuits are filed in Federal court in Southern California and the same is true in Northern California. Most property owners come face to face with the issues once a lawsuit reaches them, and only then is that when they start to look for information and at their issues. Going to Google and researching ADA compliance brings up mountains of information, however, most of what is out there on the Internet is misinformation.
You will soon come to realize that to navigate through an ADA lawsuit you will need a TEAM of experts. Your TEAM should consist of an ADA Designer who can modify the parking lot and interior of your property to meet all current Federal and California building codes. I spend a considerable amount of time educating my clients on ADA compliance because each property here in California is unique. There is no “cookie cutter” way to achieve ADA compliance in the as-built arena unless you have a professional ADA designer to design compliance for your property. By hiring only ADA designers and contractors, you will be in a much better position since the designer also performs the corrections in house thus eliminating additional possibilities for incorrect construction which then lends itself to potential multiple, future lawsuits. You will also need an expert ADA attorney that knows how to navigate against these 5-to-6 or so law firms that are filing these cases daily.
Your TEAM should also consist of a qualified, CASp inspector that will perform the initial CASp inspection to identify the actual corrections and not simply rely on the allegations within the lawsuit. A CASp inspector is a professional who has passed an examination and has been certified by the State of California to have specialized knowledge of the applicability of state and federal construction-related accessibility standards.
The problems associated with not hiring a complete and qualified TEAM iare that none of the experts are working together nor do they have a history with a solid successful background to address complicated ADA issues. Ideally, when a lawsuit is filed, the first order of business is to locate and retain the complete TEAM. From here the ADA designer and/or contractor will act as the quarterback and simultaneously bring in the ADA attorney and order an initial CASp report. The ADA designer will perform a site visit and modify the complete Accessible Route to meet Federal and California building codes.
The expert designer will suggest the property owner obtain a city permit for a variety of reasons that we will address shortly. The “key” is all the professionals should be separate entities so there are no conflicts of interest. For example, your CASp inspector should not be part of the payroll of the designer and/or contractor, nor have a financial stake in any of these entities. It is a conflict if a CASp inspects work the designer or contractor have performed. Additionally, ask the question if the CASp inspectors also work with law firms that file these lawsuits. This has become a big concern, so be sure to ask the question. This is also true with the designer and/or contractor, and each of they in turn should not perform the CASp inspections. Another example about conflicts is ask yourself, how a designer or contractor perform the work and in good faith tell the owner they performed the work correctly. This is why the relationships on your TEAM should involve impartial third parties.
There is a considerable amount of information out there between the internet, CASp inspectors, attorneys and contractors on ADA and disabled access compliance, so be very careful. California has its own current 2019 California Business Code Section 11.B. that they adhere to; however, you must also consider Federal, especially when many of the ADA lawsuits are filed in Federal court. California has its building codes that are confusing at times but that do address compliance, and also maintains records of such through building permits showing when alterations had taken place. Often, an expert may state that you do not have to make corrections since the property was compliant 20 years ago. But, be very careful with this information since on the surface it may appear helpful, but relying on that statement and possibly doing nothing may not be in your best interest.
Past building compliance is not something a city has record of nor do they have the year ADA compliance was met. So, the only way to achieve a record of compliance is by obtaining a city permit that addresses ADA compliance. Here at ACR Concrete & Asphalt Construction Corporation, our TEAM highly suggests that a city permit be obtained by our expert designer with formal plans submitted for the local jurisdiction to approve. This permit record will be attached to the property with a date creating a threshold of when ADA compliance was meet. From this point on, if the property owner obtains any other type of permit, then local jurisdiction should require updated compliance per any new codes which typically are very minor. This process allows local jurisdiction to assist you in keeping compliant. Again, we highly suggest obtaining a city permit since virtually any work for purposes of ADA compliance requires a permit. If you attempt to perform ADA accessibility work without a permit, the city or county could shut you down and place you as the owner and your tenants in a untenable position.
Furthermore, having a city inspector inspect your ADA construction and ultimately approving the project adds another set of eyes for an additional layer of protection. Here at ACR Asphalt & Concrete Construction, Inc., we do not stop there. We also insist on a CASp reinspection to catch any corrections that the city inspector may have missed. This is such a critical component in achieving ADA and Disabled Access compliance that we do not charge an additional fee for the reinspection. Through our decades of experience providing ADA compliance, we troubleshoot how and why property owners end up with multiple lawsuits prior to reaching us. The most popular is that the property owner may obtain a CASp report initially but hand it over to an asphalt contractor without a permit and “hope” they perform the work correctly – but, “hope” is not a strategy. Navigating down this path provides no final protection thus leaving the door open for additional, perhaps multiple, lawsuits. We highly suggest working with a qualified TEAM that includes an ADA designer, ADA cContractor, CASp inspector, city inspector and expert ADA attorney. This will save you time, money and frustration, and provide multiple layers of protection.
Being proactive is what we have spent years educating the public on when it comes to ADA compliance. From our dozens of articles and monthly webinars, we are trying to get the word out there – BE PROACTIVE. Because once a lawsuit is filed – it becomes public notice, and the ADA compliance issues do not go away until they have been properly corrected. Merely having a disable parking space is NOT ADA Compliance and that is something that most asphalt and concrete contractors do not understand. We have seen during the last 3 years that once a property has been sued for ADA Compliance issues, that the property is likely to be sued again within 6 to 14 months if the property and ALL of its ADA corrections have not been made.
Anthony C. Guichard is the President and Founder of ACR Concrete & Asphalt Construction, Inc. He personally holds licenses; A, B, C-12, C-8 & C-32. ACR Concrete & Asphalt Construction, Inc has significant experience addressing complex ADA access compliance issues in the built environment. They are committed to improving access for individuals with disabilities by providing information, education, and access compliance solutions to commercial and rental property owners throughout the State of California. For more information, field investigation &/or CASP reports call (714) 377-9569, (562) 472-7730 or (310) 773-7900 or visit their website at www.acrconcreteinc.com