To CASp or not to CASp?

“CASp” refers to Certified Access Specialist.  The designation was created by California Senate Bill 1608 which became law 2008, and can be found in Civil Code sections 55.3 et seq. When the bill was working its way through the legislature, and when it became law, I was a skeptic.  I remain somewhat underwhelmed.  Abusive access lawsuits remain as numerous as ever.  Among other things, I viewed the portion of the law that created the CASp designation, and giving them an official role in the litigation process, as creating another cottage industry invested in an extortionate process, and adding to the overall expense of defendants.

On the other hand, perhaps I was unrealistic, wanting too much.  If the law is viewed as an incremental step towards changing to something more fair, it fairs better.  Additionally, the CASp “cottage industry,” if utilized by property or business owners before being sued, could divert some of the money that now goes to attorneys towards accessibility.  That’s the way it should be.  Even if some accessibility modifications are viewed as unecessary, all property owners and businesses would prefer to spend the money on making their property more “accessible” than giving it to someone who is suing them.

The CASp process also gives property owners and business owners an option to at least partially limit their exposure to lawsuits by access plaintiffs and their attorneys.  First, use of a CASp can be expected to eliminate at least a few accessibility barriers.  With an older property, it is unlikely that a property or business owner will be able to make all of the accessibility barriers identified by the CASp comply with current code.  But certainly a few of the barriers an be eliminated.  For those that cannot be eliminated, the owner should develop a written schedule / plan to phase in modifications as money allows.   This is part of the compliance process identified in the law that can help in the defense of a lawsuit.

Second, obtaining a CASp inspection conveys certain rights to a defendant in an access lawsuit.  SB 1608 provided that a defendant has a right to have the lawsuit “stayed” pending an “early neutral evaluation conference.”  Essentially, this is process that concludes with a mandatory settlement conference.  In my experience of defending over 100 of these types of lawsuits, this process aids the plaintiff in extracting a larger settlement more than it helps the defendant in reducing the settlement or having the lawsuit dismissed.  Also adds to a defendant’s cost in defending against a lawsuit.  A subsequent amendment to the law, SB 1186, passed in 2012, reduces the minimum “damages” that a plaintiff can recover from $4,000 to $1,000 if certain conditions are met.  As a practical matter, this has not caused most plaintiffs and their attorneys to reduce their settlement demands, which seem predicated more on the coercive impact of the cost of litigation than on a defendant’s acts of compliance.   Nevertheless, if a lawsuit proceeds to judgment, this amendment may help reduce or eliminate a plaintiff’s recovery.

In hiring a CASp, it is very important to interview several and to get recommendations.  Some CASps charge several thousand dollars for doing no more than going through your property with a checklist.  Additionally, different CASps are good for different purposes.  The better CASps are able to interpret the law, and know its background, so that it is appropriately applied to your property.  This is particularly important for “existing” properties, i.e., those that involve structures built before the Americans with Disabilities Act (ADA) became effective (1992). Additionally, the better CASps can provide an opinion as to what  is not “readily achievable,” the standard which exempts older properties from compliance in certain areas.  The better CASps can also provide a reasonable schedule of compliance by which an owner can phase in modifications.  Finally, the better CASps can provide helpful testimony or opinions in a lawsuit.  All of these items are important facets of defending against a lawsuit.  On the other hand, if price is adjusted accordingly, a “checklist inspection” can be very helpful to an owner who has a simple property or small business, and who is adept at self help / do-it-yourself (DIY).  Many owners, prior to a lawsuit, can implement the physical modifications on their own, and can write their own schedule of modifications and policy of maintaining accessibility (evidence of written policies and the schedule are very important in defending against a lawsuit).  For example, a single story structure on a flat lot with no restrooms open to the public will likely not require expensive or complex modifications.  Similarly, a structure built after 1992 was likely already built to comply with the ADA.  In such case, accessibility code discrepancies are likely to result from minor non-structural modifications that have accumulated since construction.

After a few years experience with the amendments (SB 1608 and SB 1186), my recommendation to property owners and business owners, especially those with older structures, is to obtain a CASp inspection – the sooner, the better – but shop around.  A “checklist” inspection and automated report may be all that is required.  Then do the math: what is a reasonable fee?  How much time and expense will the CASp dedicate to your matter.  On the other hand, for multiple properties or for properties with structural barriers, a top-rated (and likely more expensive) CASp may render an opinion or devise a solution that will save thousands of dollars for construction and design.

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About William Adams

Attorney at Norton, Moore, & Adams, LLP.
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