Almost every business owner would agree –the more customers who come in, the better! But what happens if a customer is unable to access the premises easily, or even at all?
Even if you are not concerned with accessibility issues, federal, state, and local accessibility and laws have been implemented to ensure your business is compliant with The Americans with Disabilities Act of 1990 (ADA), which requires that all facilities open to the public are accessible to those with disabilities. Conversely, failure to achieve or maintain accessibility compliance can leave you liable for discrimination claims based on unequal access to your public accommodations.
To address compliance concerns, California has enacted the Certified Access Specialist program to facilitate the access of business owners and landlords alike to trained inspectors with a wealth of compliance experience. CASp professionals are tasked with the inspection of sites to not only determine if a facility complies with the applicable construction-related accessibility laws, but also to provide guidance for scheduled improvements to demonstrate intent to comply.
But who is held responsible for these inspections –the landlord or the tenant? For the answer, always begin by looking at the lease agreement. Here’s a sample of how a CASp inspection can be treated in a lease:
“For purposes of Section 1938 of the California Civil Code, Landlord hereby discloses to Tenant, and Tenant hereby acknowledges, that the Shopping Center has, as of the date of this Lease, has not undergone an inspection by a Certified Access Specialist (“CASp”), as that term is defined in California Civil Code Section 55.52”
The language above may appear harmless at first glance. Here, it appears that the landlord is merely telling the tenant that a CASp inspection has not been performed. Absent additional language that assigns responsibility for the inspection, either the tenant, the landlord, or BOTH are subject to liability in a possible access-related discrimination claim.
Notably, the landlord and tenant will be considered “qualified defendant” if they have completed the CASp inspection. As a qualified defendant, the damages for an access-related lawsuit may be reduced to a minimum of $1,000 for each time the plaintiff visited the premises. However, without the inspection, both parties are left vulnerable, as they would have to pay statutory damages of $4,000 per occasion instead!
Regardless of who will bear the responsibility of initiating the CASp inspection, landlords and tenants alike should take heed of these requirements in order to avoid future liabilities and promote equal access for all customers. Thus, we strongly suggest you contact an attorney who can afford you with his or her experience to help ensure your lease agreement properly addresses ADA and CASp compliance requirements.
SOURCES
http://www.dgs.ca.gov/dsa/Programs/programCert/casp.aspx
https://www.documents.dgs.ca.gov/dsa/casp/CASp_Myths.pdf
http://www.dgs.ca.gov/dsa/Programs/programCert/casp/consumerfaq.aspx#faq1
You and your practice deserve an attorney who is accessible to you when you have questions or concerns, as well as work efficiently to meet important deadlines. Call or fill out our form to learn more about how we can support you and your practice.
