A GASp at CASp
Oh where, oh where, do we begin in attempting to evaluate the recent California ADA Access requirements that may have created one of the most murky and predatory law environments for commercial property owners’ in California today?
Before I begin, let me state that the quest to create access to the disabled sector of our communities is noble and needs to be supported. This article in no way is intended to imply that no efforts need to be made to eliminate access barriers in the marketplace.
But in the spirit of the “Law of Unintended Consequences”, the current ADA Compliance requirements that have been identified in the “New CASp Legislation” will have you scratching your head in utter amazement at the lack of foresight.
ADA Requirements came into law in 1991 and those requirements have been updated in both 2010 and in 2013. In efforts to be fair to existing property owners, language was added to the new regulations that attempted to call for reasonability that said, ” Readily Achievable to do so”, and further providing a “Safe Harbor Provision” to property owners who’s improvements were already completed prior to the approval of the new legislation. Compliance issues have been further complicated by the fact that ADA REQUIREMENTS are a Federal Mandate; although the actual enforcement of the Rules have been historically relegated to the local municipalities,thus creating a vast area for yet more ambiguity.
But Wait!! That’s not all! There’s more.
Further complications have developed by a California Supreme Court decision opining that any non-compliance with ADA STANDARDS IS AUTOMATICALLY a violation of California disabled access laws. You don’t have to show proof of damages, and now California leads the nation in the number of access lawsuits. The fertile ground for predatory frivolous lawsuits was born.
Enter the new CASp survey. This program was developed as a hedge to protect property owners against the slew of vicious lawsuits littering our judicious system, but it too appears to have backfired.
The “Updated” Requirements suggested in the CASp inspections can be expensive to implement because, (of course), most buildings have been constructed under the previous approved standards, thus creating yet another quagmire for commercial property owners.
For instance, in making a determination as to the updated requirements for CASp Compliance, has the owner been put on constructive notice that existing improvements MUST be modified? THAT IS A RHETORICAL QUESTION. What if the changes between the approved Compliance Regulations from 2010 to 2013 to the New CASp Requirements that amount to like an existing improvement now being 2 inches off, or a ramp slope that needs to be repaved (even though it passed inspections in the past and was certified) because the slope requirement has been modified? Is that reasonable?
I honestly don’t know where the lunacy ends, but one thing to consider if you are planning a CASp survey is to have your attorney order it for you, thus citing attorney /client privilege. You may want to Google ADA Defense Law, and read what their opinions are regarding protecting yourself as property owners from this legislation (run amok) phenomena that is leaking into our investment environment here in California and creating havoc for Commercial Property Owners.