2016 California Senate Bill 269 (“SB 269”) was signed by Governor Jerry Brown 10 May 2016, and is now law. While a number of provisions will have a more significant impact in the future, many took immediate effect and have changed the way business and property owners throughout California deal with inspections, improvements and litigation relating to disabled accessibility. Some businesses are scrambling to make changes before certain provisions take effect 1 January 2017, and some potential benefits may be lost if changes are not made within as little as fifteen (15) days of notice (and there is some question about what might constitute appropriate notice, as discussed below), so readers should quickly get appropriate legal advice about how SB 269 might impact any legal issue of significance, including without limitation inspections, improvements and litigation relating to disabled accessibility.
Would you be concerned about your business or property appearing on the State Architect’s list of locations which have been CASp-inspected after 1 January 2017?
New California Government Code § 4459.7(a)(2)(B) now requires the State Architect to publish a list of businesses which have been inspected by Certified Access Specialists (“CASp Inspectors”) after 1 January 2017, including the date of the inspection. But some properties have conditions which fail to comply with applicable law, and cannot be corrected cost-effectively; if your business or property has such conditions, you should get immediate legal advice about whether there might be undesirable potential consequences to getting CASp-inspected or appearing on that list—the frustration for many business and property owners is that they may not be able to determine whether their property has conditions which need to be changed, but which changes are too costly or burdensome for the responsible parties to change.
Some business and property owners have expressed concern that opportunists might use the State Architect’s list of businesses which have been CASp-inspected to obtain the location of businesses for which a CASp report has been prepared, and bring claims against them if they find any noncompliance, because they know that a number of judges may not consider inspection reports privileged even if the inspecting CASp was retained through an attorney. Because there are other ways to get information about changes which might be needed at a property without a CASp inspection, and because many businesses have expressed frustration in attempting to obtain the benefits of CASp inspection in litigation matters, some businesses have concluded that the actual benefit which may be available from a CASp inspection (if any) may no longer justify the potential risks associated with it.
Would you be concerned about having a CASp inspect your business or property if the CASp was required to prepare a detailed report listing the conditions which need to be changed, and there was the risk that someone suing you now or later might be able to get the CASp’s report?
New Civil Code § 55.53(a)(2)(D) provides in pertinent part that “ . . . if the CASp determines that corrections are needed to the site in order for the site to meet all applicable construction-related accessibility standards, the CASp shall provide a signed and dated written inspection report to the requesting party that includes all of the following: . . . (D) An identification and description of the structures or areas of the site that need correction and the correction needed.”
Some lawyers have expressed concern that reports like the foregoing could be obtained by an opponent in current or future litigation— after all “reports of inspections of the property” have become one of the most common discovery documents requested in ADA/accessibility litigation in California, and some judges might not agree that information about an inspection of a property that is opened to the public should be privileged or exempt from disclosure, even if the inspector was retained through an attorney. A number of businesses have preferred to receive information about changes which might need to be made at a property through oral comments or other means, rather than having a document created, which could potentially be obtained by an opponent in litigation— even many years in the future— and used against them; however, because new Civil Code § 55.53(a)(2)(D) mandates that the CASp “shall” prepare a report listing the conditions which need to be changed and the date of the inspection, some businesses are concerned that opportunists could attempt to obtain the report and contend they visited the property a few weeks before the inspection, so encountered the same barriers, and the mandatory CASp report would provide a free expert conclusion that the conditions in question failed to comply with applicable law.
Based on the foregoing, some businesses have concluded that in light of SB 269 it may be preferable in certain circumstances to obtain information about changes which might need to be made to comply with applicable accessibility requirements through some source other than a CASp (i.e., the “Non-CASp Affiliate”) who is retained through an attorney. There are a number of architects who are not CASps who have an extensive knowledge of access issues, and might be able to provide preliminary information and guidance about changes which need to be made at a property.
If a CASp who concludes that a business or property meets applicable requirements for disabled accessibility must prepare a report showing the date and nature of all changes made in response to a prior CASp report, would you prefer to get preliminary information about what might need to be done to get a business/property ready to be certified from some reliable source other than a CASp, and only then call a CASp to certify the property once it appeared that all appropriate changes had been made?
New California Civil Code § 55.53(a)(1)(B)(ii) now requires a CASp who concludes that a property meets applicable requirements to prepare a report which lists the date and nature of each change made at the property which led to compliance if the changes were made through information received from the CASp report; some businesses have expressed concern that an expert’s itemization of changes which have been made at a property relating to possible noncompliance with applicable law could be used by opportunists to support claims (i.e., a dishonest person might simply claim that they’d visited the property a few weeks before changes mentioned in the CASp report were made, and encountered the noncompliant conditions). For this reason, some businesses have concluded that it might be advisable to obtain information about changes which might need to be made at a property from some source other than a CASp (i.e., the non-CASp Affiliate), ideally retained through an attorney to maximize the likelihood that the information will be protected by privilege (such as the attorney work product privilege) and therefore exempt from disclosure in litigation), and that it might be better to wait to have a CASp visit the property only after it was fairly certain that all areas could be certified as fully compliant.
Would you be comfortable asking a CASp to inspect your property if employees-only areas could not be excluded from the scope of the inspection?
New Government Code § 4459.7(f) provides in pertinent part that “[f]or purposes of this section, the “structure or area inspected” means one of the following: the interior of the premises, the exterior of the premises, or both the interior and exterior”— it provides no means to exclude any areas (such as employees-only areas, space wholly controlled by a tenant, etc.); but new Civil Code § 55.53(a)(4) requires that if a CASp inspects a property pursuant to Civil Code § 55.56(g)(3)(A) (and a business might want a CASp to do this under certain circumstances), that the CASp “shall” file a notice with the State Architect providing details about that inspection, and such notices shall be posted on the website of the State Architect. Many businesses have expressed concern that opportunists might use the information in such notices to support inappropriate claims, as discussed above, but perhaps more troublingly, a business may need an area of a property inspected in connection with litigation (for example, to show that an area the claimant claimed to have encountered was now compliant), but certain employees-only areas of that business might not be compliant (very common in older food service businesses), so requirements like this might limit the business’ access to justice if the CASp, the State Architect or an opponent in litigation were to contend that the clearance a CASp would provide pursuant to new Civil Code § 55.56(g)(3)(A) would not be effective unless it included all interior or exterior areas, and that no area could be excluded from the CASp’s report.
New Government Code §65946(b) provides that building departments “shall” expedite project applications which are accompanied with an official certificate reflecting a CASp inspection, CASp approval of plans, and appropriate evidence of justification; but SB 269 does not define what “expedite” might mean for any given project; readers should ask building departments candidly about how much time savings can reasonably be expected from providing such information, in order to evaluate whether it justifies potential risks associated with CASp inspection.
Processing times and procedures vary at building departments around the State. Because all documents submitted with permit and other applications will likely remain in building department files for many years to come, and because documents in such files are commonly obtained by plaintiffs’ attorneys and/or opportunists, readers may want to inquire of building departments about exactly how much faster documents would likely be processed if such documents were to be provided, to evaluate whether doing so would provide a significant advantage for any given project, in light of the considerations discussed elsewhere in this FAQ about CASp inspection with regard to SB 269.
In light of the foregoing considerations, and the fact that some businesses have reported difficulty in obtaining the benefits previously expected from a CASp inspection (discussed below), many businesses have concluded that it might be better (1) to quickly obtain information about changes which might need to be made at a property from some qualified person who is not a CASp, (2) to make those changes, if reasonably possible, asap in 2016 so that if a property is to be inspected by a CASp, it will not appear on the State Architect’s list of businesses which have been CASp-inspected on or after 1 January 2017, and (3) to delay asking a CASp to inspect a business or property until it appears that a CASp would likely be able to certify that the location fully complies with all applicable laws for disabled accessibility, including without limitation the ADA and CBC.