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ADA Defense Lawyer: California's Certified Access Specialist program --
Does it provide all of the intended ADA protections?
 

By Jim Butler and the Global Hospitality Group®, 
Author of www.HotelLawBlog.com
December 7, 2010

For the most recent update on this topic, click here

Hotel ADA Defense Lawyer on CASp: In our ADA Defense 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.

JMBM Global Hospitality Group® member, Eudeen Chang, defends hotels in ADA litigation and explains the meaning of the O'Campo decision and why he still recommends that hotel owners certify their properties under CASp.

California Hotel ADA Defense Lawyer:

CASp may not be a "silver bullet" for hotels

but CASp compliance is still a smart move!

Eudeen Chang | Hotel Lawyer, JMBM Global Hospitality Group®

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.



Eudeen Chang is a lawyer in the Litigation Department of JMBM's Orange County office and a member of JMBM's Global Hospitality Group®. He represents hotel owners in a variety of litigation matters including hotel management agreement disputes, loan and debt restructurings, receiverships, and ADA defense. He is well-versed in all aspects of litigation, from pre-lawsuit strategizing to trial, post-judgment collection and through appeal. Eudeen conducts business in both English and Chinese (Mandarin). Contact Eudeen at EChang@jmbm.com or 949.623.7232.

Other articles on ADA

If you found this article of interest, you may want to check out some of the other articles on this topic on www.HotelLawBlog.com which can all be found under the "HOTEL LAW TOPIC" of "ADA" at the top of the home page (or by clicking here).



Our Perspective. We represent hotel lenders, owners and investors. We have helped our clients find business and legal solutions for more than $60 billion of hotel transactions, involving more than 1,000 properties all over the world. For more information, please contact Jim Butler at jbutler@jmbm.com or 310.201.3526.

Jim Butler is a founding partner of JMBM and Chairman of its Global Hospitality Group®. Jim is one of the top hospitality attorneys in the world. GOOGLE "hotel lawyer" and you will see why.

JMBM's troubled asset team has handled more than 1,000 receiverships and many complex insolvency issues. But Jim and his team are more than "just" great hotel lawyers. They are also hospitality consultants and business advisors. For example, they have developed some unique proprietary approaches to unlock value in underwater hotels that can benefit lenders, borrowers and investors. (GOOGLE "JMBM SAVE® program".)

Whether it is a troubled investment or new transaction, JMBM's Global Hospitality Group® creates legal and business solutions for hotel owners and lenders. They are deal makers. They can help find the right operator or capital provider. They know who to call and how to reach them.
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Contact: 

Jim Butler
Chairman, Global Hospitality Group
Jeffer, Mangels, Butler & Marmaro LLP
1900 Avenue of the Stars, 7th Floor
Los Angeles, CA 90067-4308
(310) 201-3526 direct
jbutler@jmbm.com
www.HotelLawBlog.com

 

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Also See: How "Standards" Can Protect Your Hotel Mixed-use Assets . . . / Jim Butler / November 2010

Hotel Lawyer: Checklist for Negotiating Hotel Management Agreements/Hotel Operating Agreements - The HMA PRO™ Checklist / Jim Butler / November 2010

Distress Continues for Hotels and Commercial Real Estate: New Data Suggests 8 year Downturn, Dismal Prospects and Increased Foreclosures / Jim Butler / October 2010

Atlas 2009 Year End Hotel Survey . . . and What it Means / Jim Butler / February 2010
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