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.
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.
A 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.
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. A licensed access specialist is the definitive authority for conducting an inspection to verify the conditions.
An ADA inspector who conducts a CASp Inspection, provides many benefits, especially when dealing with an ADA lawsuit. Among other things, the law requires the court to grant a 90 stay of the proceedings and schedule an early-evaluation conference between the plaintiff and the defendant. This is why ADA defense attorneys, recommend getting an inspection from a certified access specialist CASp.
The bill also 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. A CASp inspection from a Certified Accessibility Specialist can verify that.
The reform legislation, SB 1608, is designed to promote compliance with laws providing equal public access in places of business to individuals with disabilities while reducing unwarranted litigation.
Another area where a CASp assessment by an Access Specialist can help is with 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. Eventually, all permitting and plan checks must be CASp-inspected. However, in the meantime, retaining a Certified Access Specialist will enable you to be proactive and ensure everything is addressed.
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. This is where a CASp being hired to conduct an ADA inspection can verify the conditions and the specific complaints in the lawsuit.
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. A CASp inspection by a licensed access specialist can provide expert findings for such needs.
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. A CASp inspection can verify this.
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 an accessibility case.
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.
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.
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
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.
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).
The owner/tenant can then request a “Certificate of Inspection” window sticker.