ADA Changes On The Horizon
6/22/2012 - 48
There has been a steady increase in the number of civil lawsuits in San Francisco that allege ADA, Unruh Act, California Building Code, and/or San Francisco Building Code accessibility infractions. In fact, the Office of Small Business found that more than 300 San Francisco businesses have been sued since 2005 for alleged ADA violations. In this update we review the current laws that govern accessibility, and some recent proposals for change.
Federal and State Disabled Access Laws
The federal Americans with Disabilities Act was enacted in 1990 to prohibit discrimination based on disabilities and to ensure equal opportunity and access for persons with disabilities. Individuals with disabilities are defined as those having physical and/or mental impairments that substantially limit a life activity. Many San Francisco small businesses fall under Title III provisions and are required under federal law to adhere to certain physical specifications. For example, the door to restrooms in public facilities must be considered accessible. Accessible doors are at least 36" wide, fitted with lever-type hardware, and must not swing into required "clear areas." The list goes on.
The Unruh Civil Rights Act of 1959 is a supplementary California law that "provides protection from discrimination by all business establishments in California, including housing and public accommodations." The Unruh Act covers more individuals than the federal ADA - it extends protection to people with medical conditions and it only requires that the disability or disabilities limit, rather than substantially limit, a major life activity.
The California Building Code (CBC) and San Francisco Building Code (SFBC) are analogous to ADA provisions in many ways because they provide procedural and accessibility guidelines for building, electrical, plumbing, mechanical, housing, and energy systems for the State in general, and San Francisco, in particular. The San Francisco Department of Buildings and Inspection is responsible for enforcing these codes for small businesses. Most small businesses that provide goods and services to the public are required to comply with accessibility related laws, from the federal level to the city level. The conundrum is that many ADA regulations do not perfectly align to city and state regulations, thus creating confusion regarding necessary compliance and increased liability amongst small business owners and landlords. In addition, some San Francisco small business owners who have been sued had erroneously assumed that their initial procurement of city permits and licenses served as proofs of compliance with all accessibility laws, which is not necessarily the case.
Proposals for Change
Recently, legislation in Sacramento has been proposed in order to curb, what some see as abusive Americans with Disabilities Act lawsuits. California State Senate President Darrell Steinberg and State Senator Bob Dutton have co-sponsored SB1186, which would prohibit plaintiffs and their attorneys from threatening small businesses with "settlement demand" letters under the pretense of alleged ADA violations and require a written accessibility violation letter to be sent to a landlord or small business owner at least 30 days before a suit can be filed. It also compels commercial landlords to inform small business tenants whether their buildings are state-certified as ADA compliant. Some who oppose the proposed bill, like Margaret Johnson of the advocacy group Disability Rights California, believe that rules like the 30-day notice requirement would breach the civil rights of individuals with disabilities. Proponents of the bill, such as US Senator Dianne Feinstein, believe that the amended statute will diminish what some say are frivolous lawsuits linked to ADA compliance. The measure has passed the California Senate by a vote of 36-0, and is currently in the Assembly.
David Chiu, President of the San Francisco Board of Supervisors, has also introduced an ordinance that seeks to reduce the volume of ADA disability access lawsuits. Entitled "Disability Access Improvements for Small Business and Landlord Obligations," the ordinance would require commercial landlords leasing to small businesses for public accommodations to bring all ground-floor entrances and exits into compliance with current access laws at the time a new lease is signed or an existing one is renewed. Furthermore, property owners would be required to inform small business tenants of all applicable federal and state accessibility law requirements. Lastly, the new ordinance would allow expedited permitting for entities pursuing accessibility improvements. The proposal is currently being reviewed and may be modified before being sent to the San Francisco Land Use Committee in late July.
Where to Go For Help
Whether or not the proposed bills are signed into law, compliance with Federal, State, and City regulations is essential. For a fee, a certified access specialist will inspect a property and grant Certified Access Specialist Program (CASp) Certification. Under the Construction-Related Accessibility Standards Compliance Act, business owners are granted special legal rights for utilizing a specialist, which can help defend against accessibility related lawsuits. There are a number of free resources that businesses can access for Federal, State, and local guidelines: the national ADA website at www.ada.gov for the 2010 ADA Standards, ADA Accessibility Guidelines (ADAAG), and the ADA Guide for Small Businesses; the San Francisco Office of Small Business Website at http://sfgsa.org/index.aspx?page=3805 or call (415) 554-6134 for information on all federal, state, and city laws pertaining to access requirements - the ADA, the California State Building Code, the Unruh Civil Rights Act, the California Disabled Persons Act, and the Construction-Related Accessibility Standards Compliance Act. Regina Dick-Endrizzi, the Executive Director of the Office of Small Business, is also available to field questions. Her office number is (415) 554-6481. The Department of Justice Toll-Free ADA Information Line is 1-800-514-0301 for business-related inquiries regarding the federal Americans with Disabilities Act.
Sheryl Reuben acknowledges the assistance of law clerk Joseph Mensah who made substantial contributions to the writing of this article.
The issues discussed in this update are not intended to be legal advice and no attorney-client relationship is established with the recipient. Readers should consult with legal counsel before relying on any of the information contained herein. Reuben & Junius, LLP is a full service real estate law firm. We specialize in land use, development and entitlement law. We also provide a wide range of transactional services, including leasing, acquisitions and sales, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.
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