6 December 2010
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Hotel ADA Defense & Compliance Lawyer on CASp: In our ADA Defense & Compliance blog of September 20, 2009, we let California hotel owners know why they should take advantage of the “Certified Access Specialists program” (CASp), a piece of legislation designed to curb abusive ADA litigation. See: ADA Hotel Lawyers: California opens door to more ADA litigation, but also offers protection to the well-informed.
However, a judge in the United States District Court, Eastern District of California determined, in O’Campo v. Chico Mall, LLP , that a “public accommodation” (such as a hotel) with CASp certification is not entitled to all benefits that were intended by the California Legislature.
California Hotel ADA Defense & Compliance Lawyer:
CASp may not be a “silver bullet” for hotels
but CASp compliance is still a smart move!
California’s 2009 Construction-Related Accessibility Standards Compliance Act (“the Act”) was designed to curb abusive ADA litigation by creating the Certified Access Specialist program (CASp). CASp enables business owners to follow procedures to “certify” that their facilities meet state and federal accessibility standards. One benefit CASp offers is that business owners with certification have the option to stay or stop all construction-related ADA litigation initiated against them and instead proceed to mediation, making it possible to avoid expensive and lengthy proceedings that drive up legal fees. But a recent court decision suggests this may not be the case when sued in federal court, suggesting that CASp may not offer all the benefits intended by the California legislators.
California’s Construction-Related Accessibility Standards Compliance Act
The Act defines a construction-related accessibility lawsuit as any civil claim brought against a public accommodation based on a violation of standards that require new or existing construction to comply with accessibility guidelines laid out in the Americans with Disability Act (the “ADA”), the California Disabled Persons Act, the California Unruh Act and any other state or federal law. Under the Act, a defendant has 30 days to file an application for a stay and early evaluation conference. This application must include: a signed declaration that the site has been CASp-inspected or is in the process of an inspection; that a report has been filed by a certified access specialist; and verification that there has been no construction started or completed since certification was issued that might impact accessibility. Immediately after receiving the application for stay and early evaluation, the court must grant a 90-day stay and schedule a mandatory early evaluation conference conducted by a superior court judge or commissioner.
Possible Restrictions On CASp Benefits In Federal ADA Litigation
In August 2010, the United States District Court, Eastern District of California, ruled in O’Campo v. Chico Mall, LLP that a “public accommodation” certified under the Act is not entitled to the state procedural benefits and protections afforded by the Act if the action is filed in federal court under the ADA. The O’Campo court found that the ADA does not provide for mandatory stays and early settlement conferences for a CASp-inspected public accommodation, and concluded that any state law requiring that a claim brought under the ADA be subjected to such a procedure clearly conflicts with federal law. The O’Campo court arrived at the same result regarding parallel state law claims. Because the ADA and “state claims turn on virtually identical facts and similar theories of liability”, it would be “an inappropriate use of judicial resources to have the federal courts and the state courts simultaneously resolve cases with virtually identical facts.”
Since O’Campo is an Eastern District of California Court Opinion, until the Ninth Circuit Court of Appeals decides to issue an opinion, other Districts (such as the Northern District and Southern District of California) with standing general orders in ADA cases providing protections afforded under the Act may reach a different result. Certification under CASp, however, still offers other benefits, including, for example, guidance on a determination of the amount of reasonable attorneys’ fees and costs for construction-related accessibility standards claims. The Act also provides that statutory damages are recoverable only if the violation or violations of one or more of the construction related accessibility standards denied the plaintiff full and equal access to the place of the public accommodation on a particular occasion.
What’s it all mean?
We think that O’Campo is a “bad decision” and look for other courts to come up with a better result, and ultimately to overrule this case. In the meantime, prudent California hotel owners and operators will continue to obtain CASp certifications, however, they should know that CASp is not a “silver bullet” that will enable them to stop all construction-related ADA litigation and proceed to mediation, at least when sued in the Eastern District of California.
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Other ADA defense and compliance resources
You can access the full library of ADA materials on Hotel Law Blog by going to the home page, selecting the tab at the top that says “HOTEL LAW TOPICS”, and then clicking on “ADA Defense & Compliance” in the drop down menu . . . or by clicking here.
Below is a partial listing of articles by JMBM’s ADA Defense Lawyer team:
The ADA Compliance and Defense Guide — Free Download
ADA Defense Lawyer: New ADA standards for website accessibility
Starwood Hotels and The Phoenician get an expensive (and unnecessary) lesson in ADA compliance.
DOJ sues 3 of NYC’s top Zagat-rated restaurants for ADA violations
Charles Schwab settles claim over website accessibility
A blast against frivolous, serial ADA lawsuits in striking the right balance
New ADA compliance standards for golf courses. What do they mean to you?
How to handle an ADA lawsuit . . . and How not to do it
How a recent ADA case affects all hotels but particularly conference centers and meeting hotels
Defending ADA lawsuits. How your hotel website can make you a target for ADA lawsuits
Martin H. Orlick is one of the top ADA defense lawyers in the country. He has helped hotel, restaurant, retail and other commercial property owners defend more than 500 ADA cases. In addition to defending lawsuits and governmental investigations, Marty’s team of ADA specialists focuses on enterprise-wide ADA compliance and litigation prevention, including facilities, website and operational compliance. He is also is a senior member of the law firm’s Global Hospitality Group®, a partner in the real estate department, and a member of the American College of Real Estate Lawyers (ACREL). For more information about ADA compliance and defense, contact Marty Orlick at 415.984.9667 or morlick@jmbm.com.
Jim Butler is a founding partner of JMBM, and the founder and chairman of JMBM’s Global Hospitality Group® and Chinese Investment Group®. He is recognized as one of the top hotel lawyers in the world and has authored or co-authored The HMA & Franchise Agreement Handbook, How to Buy a Hotel Handbook, The ADA Compliance and Defense Guide, and The Lenders Handbook. Jim has led the Global Hospitality Group® in more than $87 billion of hotel transactional experience, involving more than 3,900 hotel properties located around the globe. Jim’s team has worked on more than 60 EB-5 projects over the past three years. 310.201-3526 or jbutler@jmbm.comThis is Jim Butler, author of www.HotelLawBlog.com and hotel lawyer, signing off. We’ve done more than $87 billion of hotel transactions and have developed innovative solutions to unlock value from hotels. Who’s your hotel lawyer?
Our Perspective. We represent hotel owners, developers and investors. We have helped our clients find business and legal solutions for more than $125 billion of hotel transactions, involving more than 4,700 properties all over the world. For more information, please contact Jim Butler at jbutler@jmbm.com or +1 (310) 201-3526.
Jim Butler is a founding partner of JMBM, and Chairman of its Global Hospitality Group® and Chinese Investment Group®. Jim is one of the top hospitality attorneys in the world. GOOGLE “hotel lawyer” and you will see why. Jim and his team are more than “just” great hotel lawyers. They are also hospitality consultants and business advisors. They are deal makers. They can help find the right operator or capital provider. They know who to call and how to reach them.