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What is CASp SB 1608

Benefits of CASp
60 day stay
EEC – Early Evaluation Conference
Qualified Defendant

CASp Qualifications
Experience – who can qualify
Testing

CASp Evaluation Process

What is CASp – Certified Access Specialist Program
State - SB 1608
In California, SB 1608 has established the Certified Access Specialist Program (CASp). The benefits of CASp apply to properties that have been inspected by an individual who is CASp-certified before a construction-related accessibility claim occurs.

Among other things, the bill requires the court to grant a 90 stay of the proceedings with respect to the claim and schedule an early-evaluation conference between the plaintiff and defendant.

The bill provides that damages may be recovered in a construction related accessibility claim against a place of public accommodation only if a violation of construction related accessibility standards denied the plaintiff full and equal access to the place of public accommodation on a particular occasion

The reform legislation, SB 1608 (Corbett; D-San Leandro, Chapter 549, Statutes of 2008), is designed to promote and increase compliance with laws providing equal public access in places of business to individuals with disabilities, while reducing unwarranted litigation that does not advance that goal.

Improved expertise in new construction and building inspections. For the first time, there will be minimum continuing education requirements for building inspectors and architects on disability access laws, to help reduce the problem of new construction failing to comply. Moreover, by July 2010, local building inspection offices will be required to have at least one CASp on staff, available to provide consultation. Eventually all permitting and plan checks must be CASp-inspected.

New state disability access commission part of the solution. SB 1608 created a new California Commission on Disability Access (CCDA), which will be a 17-member state advisory commission made up of legislative and gubernatorial appointees from both the disability and business communities. The commission will be assigned the task of evaluating and providing recommendations on further disability access issues having an impact on the disability and business communities.

SB 1608 also established important reforms that will help to reduce inappropriate attorney monetary demands and provide significant clarifications in the law for both plaintiffs and defendants concerning recoverable damages and settlement offers.

Attorneys who issue demands for money must also provide the business owner with an advisory statement. SB 1608 requires that written demands for money by attorneys be accompanied by an explanation of the legal rights of the building owner/tenant, including the ability to contact their insurance company as well as an attorney experienced with ADA lawsuits. In addition, the advisory will explain that receipt of a demand for money does not necessarily mean the business is liable.

Multiple damages may not be recovered at a single facility. SB 1608 will help to ensure that damages may be claimed only when a plaintiff personally encountered a violation or was deterred from gaining access on a particular occasion. SB 1608 clarifies that a denial of full and equal access constitutes one violation per distinct facility for purposes of damages. Damages may not be recovered for each and every single offense that may exist at the particular facility.

In addition, the plaintiff may not recover for violations that may have existed at a facility but which never caused harm or injury to the plaintiff, either in the form of an encounter or deterrence on a particular occasion.

Parties will be encouraged to consider reasonable settlement offers. SB 1608 clarifies that a court can consider, among other relevant factors, reasonable written settlement offers made and rejected by either party in determining the amount of an attorneys' fees award at the conclusion of a case.

Benefits of CASp
60-day stay
A stay is a temporary halting of all litigation. A major benefit of halting litigation temporarily is that attorneys will not be able to engage in motions or discovery and other activities that incur expensive attorneys' fees.

Early evaluation conference (EEC)
The EEC is a court-run conference between the parties, at which the parties will have the opportunity to explore whether the lawsuit can be settled. For example, if the lawsuit is based on an alleged violation that would be easy for the business to fix, and the business is willing to resolve the issue quickly, the parties will be able to discuss whether further litigation is necessary.

How to request the stay and EEC. A defendant must file a request form with the court within 30 days of being sued. The appropriate form is required to be delivered with the lawsuit, but all necessary forms and instructions also will be made available on the state's court self-help website later this year.

Defendant must provide the CASp inspection report. No later than 15 days before the EEC, the defendant absolutely must file with the court and provide the plaintiff with a copy of the CASp inspection report. If the defendant does not do so, the court may lift the stay absent a showing of good cause. The confidentiality of the report must be maintained until the conclusion of the lawsuit.

The plaintiff, in turn, must provide the court and defendant with a statement that includes the basis for the claimed violations, amount of damages claimed, amount of attorney's fees and costs incurred to date, and any settlement demands.

Qualified Defendant
The owner/tenant must be a qualified defendant in order to receive the benefits of the 60 day stay and an early evaluation conference (EEC). To become a qualified defendant a CASp must be employed, conduct a site survey and submit a completed report. The place of public accommodation that was inspected does not have to be fully accessible. It can be "determination is pending" which means that access barriers have been identified and a plan to eliminate the barriers has been written. The owner/client needs to have the completed report prior to the date of being served with a summons and complaint in an action.

CASp Qualifications
A certified access specialist (CASp) is a person business owners can be assured has been tested and certified by the state as an expert in disability access laws. SB 1608 sets up a process whereby business owners can voluntarily hire a CASp to inspect their buildings to ensure compliance with disability access standards and obtain an inspection report as proof they did so.

Who can qualify to become a CASp?
CASp must come from the following fields to qualify to take the exam; building official, licensed architect, licensed landscape architect, interior designer, registered civil engineer, registered structural engineer or general contractor. It requires a minimum of four years experience to be eligible to take the exam.

Testing
There are only 385 people certified by the CASp program. The exam is given a maximum of three times each year in northern and southern California and has a current passing rate of 20%. The exam is very difficult and requires a wide range of understanding in both state and federal disability accessibility.

CASp Evaluation Process
1) Owner, tenant or their representative requests a survey and report of their facility. This can be requested as a proactive measure or as the result of a legal summons.

2) Mark Tudor is contracted to inspect the facility and provide a written report.

3) The owner / tenant will be asked to provide some contact and property information. This will assist in the survey and asks such questions as the age of property (year built), history of improvements and a description of the area to be surveyed.

4) A CASp from ADA Compliance Professionals, Inc. will conduct a thorough inspection of the site. This includes;
• Evaluate access to site (identify nearby transit stops) from the public way
• Take photos of the facility from site entry to inspection area(s)
• Identify access barriers
• Evaluate individual site components required for access (measurements and
notations)

5) A report is written that gives a detailed description of the survey. The facility will either be "CASp Inspected", which means the site has met all applicable construction-related accessibility standards or "CASp Determination Pending" which means the site is pending a determination by the CASp of the site's accessible elements.

6) A summary of non-compliant elements is included in the report. The owner / tenant should provide a schedule for completion of corrections of non-compliant items to attach to the report. An attached plan is necessary to take advantage of the SB 1608 benefits (benefits are only available if the report is completed prior to a summons).

7) The owner / tenant can then request a "Certificate of Inspection" window sticker.

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