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The ADA, the Unruh Act, and California’s Construction-Related Accessibility Standards Act

handicap-1177156-m.jpgClick here for the link to Part 1 of this Article dealing with the ADA.

The Unruh Act is California’s state law equivalent of the ADA. The Unruh Act incorporates many provisions of the ADA, but there are some differences between the two statutes. As one major example, the Unruh Act provides for payment of damages to a plaintiff where the ADA does not allow for damages.

Another significant area of difference with the ADA is how the Unruh Act handles certain accessibility claims in public accommodations. The Construction Related Accessibility Standards Act was added to California’s Unruh Act in 2009 and was amended in 2012.

The Construction Related Accessibility Standards Act contains procedures that can help certain defendants avoid some of the turmoil and expense associated with a construction-related accessibility claim. An accessibility claim asserts that a defendant failed to adhere to statutory access standards of a business that is open to the public.

Some of the significant provisions of the Construction Related Accessibility Standards Act include:

• the establishment of the Certified Access Specialist program (CASp),
• a stay on some types of ADA litigation,
• limits on plaintiff attorneys sending pre-litigation “demands for money” letters • limits on stacking and milling of claims,
• reduced damages per violation,
• reduced attorney’s fees awardable to the plaintiff,
• requirements about providing specifics related to claims of being denied equal access to public accommodations

A CASp – A Certified Access Specialist (a CASp) is a person who has been certified by the State of California to assess the accessibility aspects of a business. If a public accommodation has been inspected and certified by a CASp, it may qualify for protections in litigation that are not otherwise available to a defendant.

Those protections include reduced damages, the ability to stay litigation, and an early settlement conference. A CASp should inspect all new construction and is also available to review and advise on existing accommodations to determine if they meet the access standards.

Stay on Litigation – If a business is CASp certified, it may be entitled to stay an accessibility lawsuit for 90 days and request early evaluation conference. Small businesses having less than 25 employees and falling below a certain gross revenue target over the preceding three years may also qualify for a stay on litigation if they promptly address the access concerns.

Demand Letters – A plaintiff attorney’s demand letter must now include the attorney’s State Bar number, a written advisory of rights and responsibilities, and list the facts that are reasonably necessary to identify the violations, all barriers encountered, how the barriers interfered with the plaintiff’s access, and the dates when the violations were encountered. The plaintiff’s attorney must also simultaneously send the demand letter to the California State Bar.

Stacking and Milling – The Construction-Related Accessibility Standards Act limits stacking and milling of claims. Stacking occurs when plaintiffs claim that they encountered access barriers on multiple occasions at the same location, thereby multiplying the statutory damages by the number of visits. Milling arises when an attorney brings virtually identical claims for the same plaintiff against multiple businesses.

Attorney’s fees – Attorneys fees are available when a plaintiff encountered violation or was deterred from public accommodations due to them. When determining the amount of reasonable attorney’s fees that can be awarded to a prevailing plaintiff, a court may now consider settlement offers made and rejected. This has the tendency to make plaintiff’s attorneys more reasonable in their demands.

The protections of the Construction-Related Accessibility Standards Act may not apply to ADA litigation venued in the federal courts.

Click here for the link to Part 3 of this Article dealing commercial property disclosures and common accessibility complaints.

This information is provided for informational purposes only and should not be construed as legal advice. It should not be acted upon without consulting a licensed California attorney about the facts, particular needs and questions of the person or entity considering these issues.

CONTACT INFORMATION: Simon Mazzola provides legal expertise in business, construction and employment matters. The Mazzola Law Office – P.C., 1001 Bayhill Drive, Suite 200, San Bruno, California 94066. Telephone: (650) 403‐4802