Apartment Management Magazine 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 accessibility laws have been in place since 1991, and in truth this should have given property owners with public accessibility plenty of time (over 30 years) to put their properties compliance. However, most property owners have just resolved a small portion of the ADA compliance issues in their properties. The most common problem is a disabled parking space; however, again, I spend a lot of time and energy with my clients explaining to them that this is not ADA compliant. The only way to protect your investments is to be proactive.
Every day, approximately 30+ ADA lawsuits are filed in federal court in Southern California and the same is true in Northern California. Most homeowners run into trouble once a lawsuit reaches them, and only then do they begin to seek information and resolve their issues. Going to Google and searching for ADA compliance brings up mountains of information, however, most of what is on the internet is misinformation.
You will quickly realize that to navigate an ADA trial, 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 applicable Federal and California building codes. I spend a lot of time educating my clients on ADA compliance as every property here in California is unique. There is no “cookie cutter” way to achieve ADA compliance in the as-built area unless you have a professional ADA designer design your property for compliance. By hiring only ADA designers and contractors, you will be in a much better position since the designer also performs the corrections in-house, eliminating the additional possibilities of incorrect construction which then lends itself to multiple future lawsuits. You’ll also need an expert ADA attorney who knows how to navigate those 5-6 law firms that file these cases daily.
Your TEAM should also consist of a qualified CASp inspector who will perform the initial CASp inspection to identify the actual fixes and not just rely on the allegations in the lawsuit. A CASp inspector is a professional who has passed an exam 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 is that none of the experts work together and they don’t have a track record with a strong track record of successful solving complex ADA problems. Ideally, when a lawsuit is filed, the first thing to do is to locate and retain the complete TEAM. From there, the designer and/or ADA contractor will act as quarterback and simultaneously engage the ADA attorney and order an initial CASp report. The ADA designer will conduct a site visit and modify the complete accessible route to meet Federal and California building codes.
The expert designer will suggest that the owner obtain a permit from the city for various reasons which we will discuss shortly. The “key” is that all professionals should be separate entities so that there are no conflicts of interest. For example, your CASp inspector should not be on the designer and/or contractor payroll, nor have a financial interest in any of these entities. There is a conflict if a CASp inspects work that the designer or the contractor has performed. Also, ask if CASp inspectors also work with law firms that bring these lawsuits. It’s become a big concern, so be sure to ask. This is also true with the designer and/or contractor, and each of them in turn should not perform the CASp inspections. Another example of disputes is asking yourself how a designer or contractor is doing the job and in good faith telling the owner that they did the job correctly. This is why relationships within your TEAM must involve impartial third parties.
There is a considerable amount of information between the internet, CASp inspectors, attorneys, and contractors about ADA compliance and disability access, so be very careful. California has its own Section 11.B of the California Business Code 2019. which they adhere to; However, you also have to consider federal, especially when many ADA lawsuits are filed in federal court. California has its building codes which are confusing at times but deal with compliance, and also keep records of this through building permits showing when changes have taken place. Often, an appraiser can declare that you do not have to make any corrections since the property was in conformity 20 years ago. But be very careful with this information because at first glance it may seem useful, but relying on this statement and doing nothing may not be in your best interest.
Past building compliance is not something a city has a record of nor does it have the year that ADA compliance was met. So, the only way to get a compliance record is to get a municipal permit that deals with ADA compliance. At ACR Concrete & Asphalt Construction Corporation, our TEAM strongly suggests that a municipal permit be obtained by our expert designer with formal plans subject to local jurisdictional approval. This permit record will be attached to the property with a date creating a threshold for meeting ADA compliance. From then on, if the owner obtains another type of permit, the local jurisdiction should require an update for compliance with any new code which is usually very minor. This process allows the local jurisdiction to help you stay compliant. Again, we strongly suggest that you obtain a permit from the city since virtually all work for ADA compliance purposes requires a permit. If you try to do ADA accessibility work without a permit, the city or county could shut you down and put you as a landlord and your tenants in an untenable position.
Plus, having your construction ADA inspected by a city inspector and ultimately approved for the project adds another set of eyes for an extra layer of protection. At ACR Asphalt & Concrete Construction, Inc., we don’t stop there. We also insist on a re-inspection of the CASp to detect any corrections that the city inspector may have missed. This is such an essential part of achieving ADA and Disability Access compliance that we do not charge an additional fee for re-inspection. Using our decades of ADA compliance experience, we troubleshoot how and why homeowners end up with multiple lawsuits before contacting us. The most popular is that the homeowner can get a CASp report initially, but hand it over to an unlicensed asphalt contractor and “hope” they do the job right – but “hope” is not a strategy.. Navigating this path offers no ultimate protection, thus leaving the door open to additional or even multiple lawsuits. We strongly suggest that you work with a qualified TEAM that includes an ADA Designer, ADA Contractor, CASp Inspector, Municipal Inspector, and Expert ADA Lawyer. It will save you time, money and frustration, and provide multiple layers of protection.
Being proactive is what we’ve spent years educating the public about in ADA compliance. From our dozens of monthly articles and webinars, we try to spread the word – BE PROACTIVE. Because once a lawsuit is filed, it becomes public notice and ADA compliance issues don’t go away until they’re properly addressed. Just having a handicapped parking spot is NOT ADA compliant and something most asphalt and concrete contractors don’t understand. We have seen over the past 3 years that once a property has been sued for ADA compliance issues, the property is likely to be sued again within 6-14 months if the property and ALL of its fixes ADA have not been made.
Anthony C. Guichard is President and Founder of ACR Concrete & Asphalt Construction, Inc. He personally holds licenses; A, B, C-12, C-8 and C-32. ACR Concrete & Asphalt Construction, Inc. has significant experience in resolving complex ADA access compliance issues in the built environment. They are committed to improving access for people 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 investigations and/or CASP reports, call (714) 377-9569, (562) 472-7730 or (310) 773-7900 or visit their website at www.acrconcreteinc.com