Many small businesses may be unaware that they are in violation of accessibility laws such as the Americans with Disabilities Act (“ADA”) until they are served with an ADA lawsuit. Defending an ADA lawsuit can be very expensive and burdensome for small businesses, and some businesses are forced to close due to the cost of such lawsuits. In February 2020, the City of San Jose unveiled a new program that provides credit grants of up to $8,000 to help small businesses achieve compliance with accessibility requirements under the ADA and the California Building Code. These grants will be applicable towards the cost of hiring a private Certified Access Specialist (CASp) inspector to prepare a CASp inspection report, and the cost of City permit, and inspection fees as identified in the CASp inspection report.
A CASp is an individual who has been certified by the State of California to assess accessibility issues at commercial properties. Business owners can hire a CASp to inspect their building to ensure compliance with disability access standards, such as the ADA, and obtain an inspection report as proof of inspection. A CASp inspection can protect against accessibility-related lawsuits by identifying compliance issues at the property and creating a plan to fix those issues within a reasonable time. Once a CASp inspection report has been issued and the business owner begins moving forward with the schedule of improvements, the business owner can invoke “qualified defendant” status if they are sued for an access violation after the report was issued. As a “qualified defendant”, the business owner may request a court stay of up to 60 days and an early evaluation conference and may be entitled to reduced statutory damages.
To apply for a CASp grant from the City of San Jose, a small business applicant must first hire a third-party CASp to inspect the commercial space and issue a report. A completed application must include:
- A CASp report prepared by a private sector certified CASp inspector that complies with the current California Building Code;
- Proof of CASp report payment (i.e., paid invoice or receipt) and proof of payee (i.e., copy of a check or credit card receipt); and
- One full-size, hard-copy, complete (or as complete as possible) set of building plans prepared and stamped by a licensed architect or licensed engineer.
The applicant will have to pay out of pocket for the CASp inspection prior to applying for the grant, and the grant will only be available to applications that will require a building permit. If the application is accepted, the applicant will be awarded a credit of up to $8,000 for the costs of the CASp inspection and permit/inspection fees associated with the work identified in the CASp report.
San Jose’s grant program is run through the Department of Planning, Business, and Code Enforcement. For the fiscal year of 2020, the Department has allocated up to $40,000 towards the new grant program, which is available to small businesses with fewer than 35 employees. If you would like to apply for a grant, you may contact a City of San Jose Small Business Ally to schedule an application submittal appointment.
Regardless, we recommend a CASp inspection to make sure your business is compliant. If you lease your business space, check your lease to see whether landlord or tenant is responsible for ADA compliance and discuss with your landlord whether they would be willing to share the cost of the inspection and/or recommended work.
This blog is written as of July 07, 2020. Recommendations and legal requirements are changing rapidly, so please continue to review our legal updates or review postings on relevant government websites.
All blogs on this site are for educational purposes only, do not constitute legal advice or opinion, and should not be applied to your situation, or any specific situation, without consultation with counsel. Strategy Law, LLP does not provide any legal advice concerning any matter discussed in a blog except upon formal engagement including, without limitation, execution of Strategy Law, LLP’s formal legal services agreement, and with respect to specific factual situations. No blog constitutes a guaranty, warranty, or prediction regarding the result of any legal matter discussed in the blog or any representation.
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