ADA Compliance and Defense Blog
CASp may not be a “silver bullet” but CASp compliance is still a smart move
California’s 2009 Construction-Related Accessibility Standards Compliance Act (“the Act”) was designed to curb abusive ADA litigation by creating the Certified Access Specialist program (CASp). CASp enables business owners to follow procedures to “certify” that their facilities meet state and federal accessibility standards. One benefit CASp offers is that business owners with certification have the option to stay or stop all construction-related ADA litigation initiated against them and instead proceed to mediation, making it possible to avoid expensive and lengthy proceedings that drive up legal fees. But a recent court decision suggests this may not be the case when sued in federal court, suggesting that CASp may not offer all the benefits intended by the California legislators.
California’s Construction-Related Accessibility Standards Compliance Act
The Act defines a construction-related accessibility lawsuit as any civil claim brought against a public accommodation based on a violation of standards that require new or existing construction to comply with accessibility guidelines laid out in the Americans with Disability Act (the “ADA”), the California Disabled Persons Act, the California Unruh Act and any other state or federal law. Under the Act, a defendant has 30 days to file an application for a stay and early evaluation conference. This application must include: a signed declaration that the site has been CASp-inspected or is in the process of an inspection; that a report has been filed by a certified access specialist; and verification that there has been no construction started or completed since certification was issued that might impact accessibility. Immediately after receiving the application for stay and early evaluation, the court must grant a 90-day stay and schedule a mandatory early evaluation conference conducted by a superior court judge or commissioner.
Possible Restrictions On CASp Benefits In Federal ADA Litigation
In August 2010, the United States District Court, Eastern District of California, ruled in O’Campo v. Chico Mall, LLP that a “public accommodation” certified under the Act is not entitled to the state procedural benefits and protections afforded by the Act if the action is filed in federal court under the ADA. The O’Campo court found that the ADA does not provide for mandatory stays and early settlement conferences for a CASp-inspected public accommodation, and concluded that any state law requiring that a claim brought under the ADA be subjected to such a procedure clearly conflicts with federal law. The O’Campo court arrived at the same result regarding parallel state law claims. Because the ADA and “state claims turn on virtually identical facts and similar theories of liability”, it would be “an inappropriate use of judicial resources to have the federal courts and the state courts simultaneously resolve cases with virtually identical facts.”
Since O’Campo is an Eastern District of California Court Opinion, until the Ninth Circuit Court of Appeals decides to issue an opinion, other Districts (such as the Northern District and Southern District of California) with standing general orders in ADA cases providing protections afforded under the Act may reach a different result. Certification under CASp, however, still offers other benefits, including, for example, guidance on a determination of the amount of reasonable attorneys’ fees and costs for construction-related accessibility standards claims. The Act also provides that statutory damages are recoverable only if the violation or violations of one or more of the construction related accessibility standards denied the plaintiff full and equal access to the place of the public accommodation on a particular occasion.
What’s it all mean?
We think that O’Campo is a “bad decision” and look for other courts to come up with a better result, and ultimately to overrule this case. In the meantime, prudent California hotel owners and operators will continue to obtain CASp certifications, however, they should know that CASp is not a “silver bullet” that will enable them to stop all construction-related ADA litigation and proceed to mediation, at least when sued in the Eastern District of California.
Martin H. Orlick is one of the top ADA defense lawyers in the country. He has helped hotels, restaurants, retailers, shopping centers, banks and other commercial property owners defend more than 600 ADA cases. In addition to defending lawsuits and governmental investigations, Marty’s team of ADA specialists focuses on enterprise-wide ADA compliance and litigation prevention, including facilities, website and operational compliance. Marty is the Chair of JMBM’s ADA Compliance & Defense Group, a Partner in JMBM’s Real Estate Group, and a member of the American College of Real Estate Lawyers (ACREL). For more information about ADA compliance and defense, contact Marty Orlick at 415.984.9667 or morlick@jmbm.com.