MCLE Self-Study Article: Equal Access – Including Persons of Disabilities Under the ADA

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MCLE Self-Study Article: Equal Access – Including Persons of Disabilities Under the ADA

Check the end of this article for information on how to access one MCLE self-study ethics credit.

Marty J. Nicholson, Esq. and Janis Kent, FAIA CASp

Marty J. Nicholson was an associate attorney for Calhoun & Associates representing disabled individuals with visual impairments filing numerous ADA complaints on their behalf. She has been an advocate for the visually impaired having two parents who became blind later in life. Currently, her private practice includes land use entitlements. She can be reached at marty@nicholson-law.com.

Janis Kent, FAIA CASp is a licensed California Architect, has been involved in the world of Accessibility since the mid-1980’s. She is the Founding President of the Certified Access Specialist Institute (CASI), is a Certified Access Specialist, and designated as a Subject Matter Expert by the California Division of the State Architect. Additionally she has provided training seminars and authored books on Accessibility, with the latest published by Wiley, which are compilations of architectural details for ADA and California Building Code used by architects, designers, building officials, and facility managers.

I. INTRODUCTION

Jay was standing on the corner outside of his apartment and was checking his phone constantly because he was due in court and had ordered a Lyft ride thirty minutes earlier. The ride should have picked him up fifteen minutes ago. Little did Jay know that the Lyft driver drove up to the curb, saw his guide dog, and immediately left not wanting the dog in the car, leaving Jay without a ride. Trudy’s family was going to dinner to celebrate her grandmother’s birthday. The restaurant was highly regarded for its food and views, so she was looking forward to the occasion. Years earlier Trudy had been in a car accident that left her partially paralyzed and so she used a motorized wheelchair to get around. When Trudy and her family got to the restaurant, she faced a set of stairs with no ramp or elevator. Long story short, Trudy’s family could not enjoy their planned dinner because there were no options for getting Trudy to the reserved table. It was either dine without Trudy or go someplace else. These are but some of the many discrimination experiences of people with disabilities that occur every day.

The heart of discrimination for the disabled population is about accessibility because the lack of accessibility denies and prevents people with disabilities from participation in society and living independently. It has been thirty-one years since former President George W. Bush signed the Americans with Disabilities Act (ADA) into law on July 26, 1990.1 The ADA is a civil rights law that prohibits discrimination against individuals with disabilities in all areas of public life, including "employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services."2 Interestingly enough, the ADA does not include religious institutions or private clubs. The ADA’s purpose is to provide a comprehensive national mandate for eliminating discrimination against people with disabilities; provide consistent enforceable standards; prevent the isolation of disabled persons; provide legal recourse to address ongoing discrimination; and assure equal opportunity, full participation, and independent living for the disabled population.3 In short, the law was designed to eliminate discrimination by requiring full and equal access. While the ADA was adopted to address those issues, years later many government buildings and private businesses are still not accessible.

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California has long been a leader in enacting antidiscrimination laws and ahead of the nation when it comes to protecting the interests of people with disabilities against discrimination. Laws like the Unruh Civil Rights Act and the California Disabled Persons Act were enacted long before the ADA. Like the ADA, California’s disability laws require enforcement through private lawsuits by the disabled person. "Extortionist," "vexatious litigant," and "serial litigant" are some of the repeatable names attached to disabled people who attempt to enforce their civil rights under these antidiscrimination laws. While most people may respect and admire attorneys who represent and protect the civil rights of people based upon sex, race, color, religion, and ancestry, the same is not always true for attorneys representing the disabled population.

In this article, Section II will discuss the disabled population; Section III will discuss the ADA and California laws relating to disability discrimination; Section IV will discuss real property and business owners’ responsibilities under the laws; and Section V will discuss steps real property and business owners can take to become compliant with existing laws.

II. THE DISABLED POPULATION

Before discussing the civil rights laws enacted to prevent discrimination against disabled persons, it will be helpful to understand who is disabled and how the law defines disability. A disabled litigant or their companion may only bring a lawsuit to enforce his/her civil rights under the ADA if that person has a disability or is with a person with a disability. While this may seem straightforward, this threshold question can be a challenge under Title I of the ADA. Under Title III of the ADA, this element is usually not at issue.

A. How Does the Law Define "Disability"?

An individual has a disability for purposes of the ADA if he or she meets any of the following: 1) a physical or mental impairment that substantially limits one or more major life activities of such individual; 2) a record of such impairment; or 3) is regarded as having such an impairment.4 While there has been significant litigation over what constitutes a disability in the area of employment discrimination, under Title III the plaintiff’s disability is many times readily apparent and easy to prove and therefore less likely to become an issue.5

In the past, some courts have incorrectly ruled that if a physical or mental impairment that substantially limits one or more major life activities can be mitigated through the use of aids, then the individual can no longer be classified as disabled. In 2016, the ADA Amendments Act clarified that "the definition of ‘disability’ shall be construed broadly."6 The ADA Amendment went on to clarify a number of exclusions in the definition of disability, including, but not limited to, temporary disabilities, transvestites, and illegal drug users (if not currently in a supervised rehabilitation program) which are not covered within the definition of disability.7 Much more has been said about the third prong of "is regarded as having such impairment" but since most lawsuits dealing with the third prong of the disability definition are mostly under employment cases, Title I of the ADA, this article will not delve into it.8

B. America’s Disabled Population

The most recent statistics on disability numbers from the Centers for Disease Control and Prevention (CDC) are from an August 2018 report which states that "[o]ne in 4 U.S. adults have a disability that impacts major life activities."9This equates to roughly sixty-one million Americans having some form of disability. The CDC classifies disabilities into six types including (1) mobility; (2) cognitive (mental); (3) hearing; (4) vision; (5) independent living; and (6) self-care (i.e., dressing, bathing, etc.).10 The most common disability is mobility, with cognition running second. The 2020 Annual Disability Statistics Supplement compiled by the American Community Survey states that 13.2% of the total U.S. population had a disability in 2019, of which 12.7% live in the community (non-institutionalized).11 Moreover, it is estimated that 49% of the population 75 years and older have a disability.12 It should be noted that approximately 71.5 million baby boomers (sometimes referred to as the "silver tsunami") will reach age 65 by the year 2030.13

Today we know that people with disabilities are more actively participating in their communities and are determined to live more independently; they (and their families) are actively patronizing businesses. Moreover, older Americans suffer from all types of disabilities, yet they are consumers who will be demanding products and services. Recent studies have found that people with disabilities tend to shop or acquire services when the environment is accessible and friendly.14 Most of us have lived long enough to see how the hotel industry went from "no pets allowed" to "pet-friendly" to increase their clientele. The disabled population is a consumer population, and those businesses who have made shopping, dining, and recreating accessible for the disabled by complying with disability construction standards and regulations will find new customers and larger profits. The disability market has 1.2 trillion dollars in

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disposable income.15 Companies that embrace and welcome people with disabilities are "four times more likely to have shareholder returns that outperform their peers."16

C. Disability Discrimination

"Ableism" is a term for discrimination and social prejudice against people with disabilities or those that are perceived to be disabled. This idea is that able-bodied individuals are somehow superior and people with disabilities are considered inferior. Disability discrimination, at times, is difficult for businesses and even legal personnel to understand because service to people with disabilities has not been considered. Some property and business owners believe the "injury-in-fact" must mean an actual physical injury and their attorneys waste time propounding discovery attempting to identify a physical injury that occurred when the person experienced discrimination. The "injury-in-fact" is when a disabled person is treated less well or put at a disadvantage because of their disability. Exclusion, segregation, unequal treatment, and even the failure to modify a business policy are injuries-in-fact to a disabled person. For example, while attending the National ADA Symposium, I and twenty other attendees wanted to dine together. Our group included the president of the organization who uses an assistive device, namely a wheelchair. We had been given a recommendation for a restaurant at the top of a hill, which required a ride on a railway lift car to get us there. Unfortunately, the platform at the top was uneven, and a wheelchair would have to be manually lifted to get to the pathway to the restaurant. None of us being physically able to lift an occupied wheelchair, the president insisted we go without him. That is exclusion and isolation and an injury-in-fact under the disability laws. That is what barriers do to people with a disability: they make them feel disadvantaged and treated less well than other people. Of course, the group decided to go to another restaurant that was accessible, rather than exclude the president of the organization.

The ADA spells out public accommodations discrimination within the statute. The general rule is no disabled person shall be denied "full and equal" enjoyment of goods, services, facilities, privileges, advantages, or accommodations by a place of public accommodation.17 Under the ADA, discrimination is defined as the imposition or application of criteria that screens out disabled people; failure to make reasonable modifications to policies, practices, or procedures necessary for the disabled; failure to ensure the disabled are not denied services, segregated, or treated differently; failure to remove architectural and communication barriers in existing buildings when removal is readily achievable; and failure to provide alternative methods when removing a barrier is not readily achievable.18 Additionally, for new construction, it is discrimination to fail to design and construct the building so it is accessible, which means it conforms to stated disability standards.19

People with disabilities do not want to be pitied; they want to be able to live independent lives.20 When businesses remove barriers that prevent access, people with disabilities can, in fact, live successful lives. The goal of anti-discrimination laws relating to disabled persons is all about inclusion and participation. As we have learned from COVID-19 in 2020, isolation is not good for one’s physical or mental health. As one familiar Barbara Streisand song lyrics stated, "People who need people are the luckiest people in the world."21 People need to be included in community life: it is essential for good mental health.

III. OVERVIEW OF THE ADA AND CALIFORNIA LAWS RELATED TO DISABILITY DISCRIMINATION

In California, the best-known laws, both federal and state, governing discrimination on the basis of disability include the ADA, section 504 of the Rehabilitation Act of 1973, California Fair Employment and Housing Act, California’s Unruh Civil Rights Act ("Unruh Act"), California Disabled Persons Act (CDPA), and Division 13, Part 5.5 of California’s Health and Safety Code. Most plaintiffs filing cases in California under Title III do so under the ADA in conjunction with either the Unruh Act or CDPA or both. These three major laws are designed to prevent disability discrimination but have nuances.

A. Federal Law—The ADA

The ADA consists of five titles including: (1) Title I which deals with Employment; (2) Title II which deals with State and Local Government; (3) Title III which deals with Public Accommodations in the Private Sector; (4) Title IV which deals with Telecommunication; and (5) Title V which deals with Miscellaneous Provisions.22 This article will only discuss Title III "Public Accommodations in the Private Sector" and the focus shall be on constructed-related violations and barriers.

(1) Title III. To achieve the goals of the ADA, the ADA established requirements for businesses that provide goods or services to the public which the ADA defines as "public accommodations."23 The ADA established twelve categories of public accommodations, which includes

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stores, restaurants, bars, social service center establishments, theaters, hotels, recreational facilities, private museums and schools, doctors’ and dentists’ offices, shopping malls, and other businesses.24 The ADA includes virtually all businesses that serve the public in the twelve categories, regardless of the age of their buildings or the size of the business, excluding religious institutions and private clubs.

To meet the stated goals "to provide consistent enforceable standards," the Department of Justice prepared design standards after the ADA’s enactment.25 In 1991, the first design standards for places of public accommodations were adopted but did not go into effect until January 26, 1992. The standards stated that public accommodations must: (1) modify policies and practices that discriminate against people with disabilities; (2) comply with accessible design standards when constructing or altering facilities; (3) remove barriers in existing facilities where readily achievable; and (4) provide auxiliary aids and services when needed to ensure effective communication with people who have hearing, vision, or speech impairments.26 Most of the recently filed ADA litigation involves failing to meet the requirement that businesses27 remove architectural barriers in existing buildings and make sure that newly built or altered facilities are constructed to be accessible to individuals with disabilities. Many owners of existing buildings, those buildings built before the ADA was enacted, believe they fall into a "grandfather provision"28 that is often found in state and local building codes. However, "grandfather provisions" do not exempt property owners from their obligations under the ADA because the ADA requires that existing buildings remove barriers where readily achievable.

The ADA design standards set out three categories of accessibility requirements: new construction provisions which apply to public accommodations built after January 26, 1993; alterations provisions which apply to post January 26, 1992 (i.e. alterations to buildings that already exist); and the "readily achievable" provisions which apply to unaltered portions of buildings constructed before January 26, 1993.29 These classifications are extremely important, heavily litigated, and often misunderstood.

(2) The 1991 ADA Accessibility Guidelines. The ADA’s first design standards, the ADA for Accessible Guidelines (the "1991 Guidelines"), sometimes referred to as ADAAG, was originally published on July 26, 1991, by the Department of Justice (DOJ).30 The 1991 Guidelines set standards for accessibility for all public accommodation facilities by setting standardized heights of services counters and requirements for restrooms and accessible routes, to name a few. Unfortunately, the 1991 Guidelines did not mention recreation facilities such as swimming pools, play areas, exercise machines, miniature golf facilities, and bowling alleys. Moreover, the DOJ revised some of the standards set by the 1991 Guidelines to achieve better accessibility. For example, the 1991 Guidelines required detectable warnings31for all accessible pathways that cross into a vehicular way. The DOJ eliminated that requirement in the 2010 ADA Standards, except for train platforms, determining that more research was needed on detectable warnings. However, there is an intent to add detectable warnings in the Public Right of Way Accessibility Guidelines, which have yet to be implemented.32 The reason Californians see detectable warnings is because they are required under Title 24 of the California Code of Regulations, commonly known as the California Building Code (CBC).33

(3) The 2010 ADA Standards. The Department of Justice updated the 1991 Guidelines in 2010, which were enacted on March 15, 2012, as the 2010 ADA Standards (the "2010 Standards") and referred to as the ADAS.34 Today, the 2010 Standards serve as the central document for determining if a business building is accessible under the ADA. While the 2010 Standards retained many of the original provisions in the 1991 Standards, they did incorporate some significant differences. For instance, the 2010 Standards added standards for recreational public accommodations and amended previous standards to better accommodate persons with disabilities. Another change from 1991 Standards to 2010 Standards included van-accessible spaces from one for every eight accessible spaces to one for every six spaces. It is important that a property owner know which ADA standards apply to his/her facility.

(4) Readily Achievable Provision. One of the most highly litigated provision under the ADA is the "readily achievable" provision.35 Property owners who own buildings built prior to the enactment of the ADA must make changes to their facilities to accommodate disabled people when it is "readily achievable." Readily achievable means "easily accomplishable without much difficulty or expense."36 Factors the court considers in determining readily achievable include the nature of the cost, financial resources of the facility, number of employees, effect on the facility’s resources, impact on the operation, overall finances, type, and location of the facility, to name a few.37 While the statute is not clear who bears the burden of proof, courts view "readily achievable" as a defense, and ultimately the defendant would need to prove that barrier removal is not readily achievable. In sum, businesses with more resources are expected to remove more barriers than businesses with fewer resources. Readily achievable barrier

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removal may include installing an entrance ramp, installing accessible door hardware, widening a doorway, providing an accessible route from a parking lot to the business’s entrance, repositioning shelves, or simply moving tables, chairs, display racks, vending machines, or other furniture. Businesses must comply with the adopted standards when removing barriers. When barrier removal cannot be accomplished pursuant to the standards due to space limitations, such as installing a ramp, then proposed deviations must not pose a significant safety risk. Readily achievable barrier removal should be addressed annually or on an ongoing basis by public accommodations. Not doing anything or doing very little does not provide protection from litigation.

Obviously, what is readily achievable varies from business to business based upon economic costs and revenues. Economic downturns, such as the recent COVID-19 pandemic, may force many public accommodations to postpone removing some barriers. However, barrier removal on existing buildings is a continuing obligation until all barriers have been removed. The ADA regulations have recommended the following priorities for barrier removal:

  1. Providing accessible route from the business to public sidewalks, parking areas, and public transportation;
  2. Providing access to the goods and services the business offers;
  3. Providing access to public restrooms; and
  4. Removing barriers to any other measures necessary to provide access to goods, services, and facilities.

The lack of an accessible route from the business to sidewalks, parking, and public transportation is a common barrier found at businesses. An accessible route is the path a person with a disability takes to arrive, enter, and move through a business. Pursuant to the standards, the route must be at least three feet wide, must remain accessible, and may not be blocked, either in width or height, or by display racks, planters, stacks of product, filing cabinets, or other items.38When one considers that this is the route that clients/customers must use to avail themselves of a business’ goods and services, it makes more sense to ensure it is accessible and not full of barriers that deny access.

(5) Existing Building—Safe Harbor.39 If the business building was built or altered in the past twenty years in compliance with the 1991 Standards, or barriers were removed in compliance with the 1991 Standards, the building does not have to comply with the 2010 Standards as long as there have been no additional alterations or construction on these elements or the path of travel itself does not support an altered element since that time. Thus, businesses may find it increasingly more difficult to take advantage of the safe harbor under the ADA unless the business has remained unchanged and the building has stood the test of time without alterations or construction. As buildings age and require alterations, the ability to use a safe harbor under the 1991 Standards decreases.

For example, the 2010 Standards lowered the mounting height for light switches from 54 inches to 48 inches. If the light switch was installed and compliant with the 1991 Standards (and there has been no alteration or new construction to the building) then the light switch is compliant. If there have been any plumbing renovations (a common alteration), then the building owner is required to make its facility, or portions of the facility, accessible. It should be noted that routine maintenance is not considered an "alteration" for ADA purposes. Therefore, reroofing, painting, and electrical repairs would not trigger compliance with the 2010 Standards.40 However, if a parking lot is restriped or an ATM machine relocated, those alterations trigger compliance with the ADA.41 Moreover, the 1991 Standards did not include recreation facilities such as swimming pools, play areas, exercise machines, miniature golf facilities, and bowling alleys. Therefore, the safe harbor provision does not apply for those facilities, and barrier removal is applied.

(6) Title III ADA Claim. Private lawsuits are the primary method to enforce the provisions of the ADA and get compliance with the ADA.42 The ADA only allows for injunctive relief and attorney fees; no damage awards for plaintiffs.43 For a plaintiff to prevail in a Title III, ADA claim, "a plaintiff must show that (1) he is disabled within the meaning of the ADA; (2) the defendants are private entities that own, lease, or operate a place of public accommodation; and (3) the plaintiff was denied public accommodations by the defendant because of his disability."44 The first prong of a Title III ADA lawsuit is normally not up for debate. A plaintiff’s disability is normally either well-documented or easily apparent.45 The second prong equally is not normally an issue up for debate. The third prong is satisfied when there is/are violation(s) of the applicable standards at the business and the plaintiff encountered the violation which prevented him full and equal access.46

(7) Standing. Pursuant to the United States Constitution, the federal court may only adjudicate cases in which the plaintiff has demonstrated he/she has standing.47 To show standing, a plaintiff must demonstrate "that he or she has

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suffered or is threatened with an injury that is both ‘concrete and particularized,’ and ‘actual or imminent, not conjectural or hypothetical;’ that … the injury is ‘fairly traceable’ to the challenged conduct; and … likely to be redressed by a favorable decision."48 To meet the standing requirement, an ADA plaintiff must prove he actually encountered the barrier or he was deterred from encountering.49 The requirement is an "injury-in-fact," and that injury must relate to the plaintiff’s disability. For instance, disabled people who use a wheelchair cannot litigate violations of barriers that affect blind people unless the barrier also affects the use of wheelchairs.50

B. California Laws: The Unruh Civil Rights Act and California Disabled Persons Act

Prior to the adoption of the ADA, California enacted several statutes prohibiting disability discrimination, two of the more well-known laws are the Unruh Act and the CDPA. The Unruh Act’s scope is broader than the CDPA because it protects more than just disabled persons. Both statutes prohibit the denial of "full and equal access to services, facilities, and advantages or public accommodation."51California amended both the Unruh Act and CDPA to provide a violation of the ADA is a per se violation of both statutes.52 Both laws consider a violation of the CBC to constitute a violation of the Unruh Act and the CDPA.53However, unlike the ADA which only allows for injunctive relief and attorney’s fees, the Unruh Act and CDPA allow a plaintiff to recover attorney’s fees and damages.54 While the two California laws are similar, there are unique differences.

(1) The Unruh Act. The Unruh Act was enacted in 1959 and was named for its author, California Assemblyman Jesse M. Unruh. The Act is codified at California Civil Code section 51 . The Unruh Act specifically states that the perception that the person has a protected characteristic is enough to trigger the law.55 Under the Unruh Act, a plaintiff must plead and prove intentional discrimination to prevail. However, an ADA violation pled under the Unruh Act does not require a finding of "intentional discrimination;" a CBC violation does require a plaintiff to plead and prove intentional discrimination.56

When the California Legislature amended the Unruh Act to add violations of the ADA as per se violations of the Unruh Act, the court concluded that intentional discrimination was not a required element for the ADA and therefore would not be required under the Unruh Act.57 The Unruh Act provides for a minimum statutory damage award at $4,000 per occurrence.58 More importantly, the Unruh Act attorney’s fees award is unilateral, and only the plaintiff can recover attorney’s fees but the defendant cannot.59 It is these key features that make an ADA claim under the Unruh Act desirable for a filing plaintiff.

(2) The CDPA. In 1968, the State Legislature passed the CDPA, codified at California Civil Code section 54. The CDPA in its earliest form expressly prohibited discrimination against those with physical and visual disabilities and asserted the equal right of individuals with disabilities or medical conditions "to the full and free use of the streets, highways, sidewalks, walkways, public buildings, medical facilities, including hospitals, clinics, and physicians’ offices, public facilities, and other public places."60 Under the CDPA, the standard is that a statutory penalty can be assessed based on the number of "particular occasions" an individual "actually" encountered a barrier to accessibility and was either deterred from access or suffered embarrassment and harassment because of the barrier.61 This standard has increased litigation, as defendants have been successful in asserting that while a violation may have existed, it did not deter the plaintiff or cause him or her any embarrassment or harassment.

One of the key features of the CDPA is that attorney’s fees are unilateral to the "prevailing party."62 However, when a plaintiff establishes even a technical violation of the access laws, the defendant can and will be held liable for plaintiff’s attorneys’ fees regardless of whether statutory damages are appropriate. The minimum damage award under the CDPA is set at $1,000, which is much less than the Unruh Act.

Even with the new defenses available to businesses, the cost-benefit analysis still does not typically favor defending a case to trial. The primary deterrent is attorney’s fees. Even if no statutory damages are awarded, if there are violations of the ADA or other applicable California accessibility laws in a business requiring remediation, the plaintiff can still be the "prevailing party" and be awarded his or her attorney’s fees.

To prove standing under the CDPA, a plaintiff must show that he or she actually presented himself or herself to a business or public place with the intent of purchasing its products or services and was actually denied equal access on a particular occasion.63 If a plaintiff is only aware of the barrier or had a reasonable belief the building was not accessible, then under CDPA only injunctive relief is awardable (no damages).64

(3) Construction-Related Accessibility Standards Compliance Act.

In 2008, California attempted to give businesses some relief from ADA litigation by adopting the Construction-Related

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Accessibility Standards Compliance Act (CRASCA).65 This section of law is extremely difficult to interpret, and it is debatable whether it provided the intended relief. In short, if a "qualified defendant" had a Certified Access Specialist (CASp) inspection and the CASp designation was either "meets applicable standards" or "inspected by a CASp" and the defendant adhered to the schedule of remediation, then the defendant can take advantage of a stay of the proceedings and possible reduction in damages.66

The law gives relief to facilities that have been CASp inspected by reducing damages for a "qualified defendant." The benefit of the stay of proceedings is two-fold. First, it gives time for the parties to settle the case before the defendant must file a response. Secondly, the law requires an early evaluation conference in which the judge can mediate a settlement early on, reducing the costs of litigation.67Additionally, municipalities responsible for permit inspections now must have a CASp plan checker on staff so that compliance with disability standards is incorporated into permit review processes.68

IV. IMPACT OF TITLE III OF THE ADA AND CALIFORNIA DISABILITY LAWS ON REAL PROPERTY AND BUSINESS OWNERS

Disabled plaintiffs suing businesses in California for alleged disability access violations most commonly assert claims under the ADA, the Unruh Act,69 and the CDPA.70 Too many real property owners and private businesses have simply ignored or are ignorant of their responsibilities under the disability discrimination laws. This coupled with disabled people becoming more active and assertive in their desires to live independently created the perfect setting for an increase in disability discrimination lawsuits.

A. Disability Discrimination Lawsuits

Attorneys must submit their complaints, pre-litigation letters, and case outcome reports to the California Commission on Disability Access (CCDA) within five business days of filing the complaint or mailing the letter.71 This gives the CCDA an ability to track litigation and file annual reports. For instance, 3,522 complaints alleging access discrimination were filed in California in 2019.72 According to the CCDA, 2019 saw a 16.8% decrease in complaints, down from 4,221 complaints filed in 2018.73 Of the complaints filed in 2019, 3,213 were filed in federal court and 309 were filed in state court. Of the 3,522 complaints filed, 7,507 construction-related access violations were alleged.74 Of the 7,507 construction-related access violations alleged, accessible parking violations were mentioned in some fashion in the top five categories.75 Additionally, failures to comply with counter and bar heights were alleged in 1,207 complaints. The numbers cited by the CCDA do not reflect complaints filed by pro se litigants who are unaware of the reporting requirements or attorneys who simply did not comply with the CCDA requirements.

Plaintiffs can file accessibility claims in both state and federal courts. Therefore, a property or business owner should obtain knowledgeable legal counsel quickly, regardless of where the matter is filed. Finding an experienced ADA or disability defense attorney is crucial because quick action can result in a reduction of potential damage awards. It only takes one valid ADA violation for the plaintiff to succeed on the lawsuit. An experienced ADA defense attorney will know if the complaint is legally sufficient and whether efforts to settle the case prior to defendant filing a response are more cost effective. If the complaint has merit, a case can be settled for much less than what a defendant’s attorney will charge to litigate the case. Even if the defendant wins the case, attorney’s fees are not recoverable under the Unruh Act. Less experienced defensive attorneys will advise their clients to litigate while charging much more in fees when settlement would have been financially prudent.

The complaint needs to be evaluated as to its merits within thirty days of receiving the complaint. Experienced disability defense attorneys will contact plaintiff’s counsel and request an extension of time to respond to the complaint to allow proper evaluation and discussion.

The complaint should be evaluated on the following three categories mentioned in Section III(A)(1) paragraph 3: is the building new construction (built after January 26, 1993); were alterations made to the building after January 26, 1992 (check local government for list of building permits); or does the "readily achievable" provision apply (buildings constructed before January 26, 1993, and no alterations). If the building was built after January 26, 1993 (new construction), then it should comply with either the 1991 Standards or the 2010 Standards, depending on the date it was built or altered.

If the alleged violations have merit, determinations on remediation should be discussed as soon as possible. Not every case requires a defendant to wait until the matter is resolved before making necessary changes, even if the matter ultimately goes to trial.

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B. Landlord/Tenant Issues

The real property owner (landlord) leases his property to a public accommodation (tenant) who may or may not be named in a disability discrimination lawsuit, or vice versa. Many savvy landlords are now placing provisions within their leases to make compliance with the ADA a tenant’s responsibility. Where a business location is leased, the business must check its lease carefully to see who is responsible—the landlord or the tenant. Many ADA complaints allege parking lot violations in common areas which are not under the purview of the tenant. Where the property owner (landlord) is responsible, the business may wish to assert a claim against the landlord for indemnity and/or defense as to those allegations. A claim for indemnity and/or defense is mandatory where the lease precludes the business from making structural changes to the exterior of the building. Such structural changes include, for example, making curb-cuts or re-stripping the parking lot. When the lease precludes those activities or places those responsibilities on the landlord, then the landlord or lessor becomes a necessary party in the lawsuit.

Regardless of what a lease may contain, "[b]oth the landlord and the tenant are public accommodations and have full responsibility for complying with all ADA Title III requirements applicable to that place of public accommodation."76 It is clear that a lease agreement cannot relieve a landlord of its ADA obligations, but it may allocate the costs associated between the landlord and the tenant.77Additionally, the 2010 Standards have provided that if the alterations are made by the tenant, then landlord obligations under the ADA may not be triggered.78

V. MAKING PUBLIC ACCOMMODATIONS COMPLIANT WITH THE ADA

A business can now take steps to protect itself prior to being served with a disability discrimination lawsuit by knowing which ADA regulations apply to its facility(ies), having its facility(ies) inspected for compliance with ADA and CBC regulations, and having a barrier elimination plan and an ongoing maintenance plan.

A. Which Regulations Apply to the Facility

One of the first steps a property or business owner should take is to determine what year the building/facility was built so the proper ADA and CBC regulations can be applied. If the building was built and approved for occupancy on or after January 26, 1993 (new construction), it is required to meet the ADA standards.79 There is an exception for new construction if the property or business owner can prove it is technically infeasible to meet the requirements; then mitigation measures must be identified.80 But note that this is only an exception if it means altering a load-bearing member that is an essential part of the structural frame or other existing physical or site constraints. Otherwise, if the building was built before January 26, 1993, then the "alteration provisions" or the "readily achievable" provisions would apply.

If the building cannot be classified as "new construction," the property or business owner can check building and planning permits approved for the property and building. Building permits from 1991 to present can be found at the local governmental building and safety department and/or planning department. If the property is located in a city that was incorporated after 1991, then both the city and county records must be reviewed. If there have been any alterations completed on the building/property after January 26, 1992, then the altered portion and its supporting path of travel is required to be "readily accessible to and usable by" disabled persons to the maximum extent feasible.81

Any building built before January 26, 1993, and completely unaltered, the "readily achievable" provision is applied, and the property or business owner should have a barrier removal plan. As already discussed, this provision requires all property owners to take action to make their businesses accessible to the disabled.

B. Facility Inspections

One of the more prudent steps a property or business owner can take is to have a CASp conduct an inspection of the facility. A CASp is a person who has special knowledge in accessibility laws and is certified by the State of California.82While an inspection by a CASp is not inexpensive, it can make a huge difference in any litigation, particularly in state courts, depending on the follow-up by the property or business owner. During the CASp inspection, the CASp will review the facility for non-compliance with the ADA standards and the CBC regulations. After a property/business has been inspected, the CASp can provide a certificate of inspection and identify the violations in a written report. If the business/property receives a certificate, the business can display it as a deterrent to potential plaintiffs. More importantly, a CASp certificate can provide the property or business owner with certain rights if the property or business owner is sued in state court, such as a stay of proceedings until an early evaluation hearing can be conducted by the

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court and/or a reduction in the amounts of damages from $4,000 to $2,000 or $1,000.83 These measures are meant to minimize the cost of litigation to a property or business owner that has had a CASp inspection performed and has adhered to their schedule of remediation. Unfortunately, a CASp certificate still cannot make a property or business owner completely immune from a disability discrimination lawsuit.

It should be mentioned that not all CASp’s are created equal as not all CASp’s are licensed architects or engineers. When a property or business owner hires a CASp, they should confirm that the CASp certification is valid by checking the list at the State of California’s Division of the State Architect.84 Additionally, the property or business owner should ask a prospective CASp for an example of the report that will be produced at the end of the inspection. The CASp report should have photos showing violations, identification of the ADA laws, identification of the CBC violations, descriptions of how to fix the violation, and a list of priorities based upon ADA priorities.85 Some CASp’s will also include an estimate of costs. While CASp inspections may be expensive, they are a valuable tool to any property or business owner desiring to be compliant with federal and state disability laws while providing protection from future lawsuits. If the property or business owner receives a sample report that is difficult to read or understand, they can find another CASp to do the inspection.

C. Barrier Elimination and Ongoing Maintenance Plan

For buildings built before the ADA was enacted, after an inspection by a CASp, the report will provide a list of the violations and barriers that might need to be removed. The property or business owner uses the list to identify those which can be completed immediately, those which will require time to plan and those that may fall under the technically infeasible, as well as those that prohibit access to their facility and services. The property or business owner and CASp prepare a plan to remove readily achievable barriers and identify dates to complete the plan to make the property accessible to disabled persons. Since passing the ADA, Congress has also passed tax incentives to assist property owners in becoming fully accessible. Property or business owners can get tax credits and tax deductions for monies paid to make their public accommodations accessible.86

Lastly, ADA compliant parking spaces, signs, and pathways require ongoing maintenance. Many property and business owners find themselves facing litigation because they allowed the paint to fade, the signs to become illegible, or pathways to have large cracks and/or potholes. All property and business owners should have an ongoing maintenance plan to make sure the accessible features maintain their integrity.

VI. CONCLUSION

When a property or business owner is served with a summons for violating the ADA/Unruh Act/Disabled Persons Act, it should be a warning that their place of business is not meeting the needs of all its customers or potential customers. Instead of reacting with negativity towards the person with the disability who has been denied access from patronizing the business, there should be concern about failing to meet the needs of an ever-growing consumer population.

The ADA and other disability laws prohibiting discrimination against disabled people can be a wakeup call to become more service-friendly to all consumers, not just abled-bodied consumers. Eleanor Roosevelt, whose husband had a disability, summed it up best when she said, "It’s better for everybody, when it gets better for everyone."

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Notes:

1. 42 U.S.C. §§ 12101, et seq.

2. Id. § 12101(a)(3).

3. Id. § 12101(b).

4. Id. § 12102.

5. Reycraft v. Lee, 177 Cal. App. 4th 1211, 1215 (2009); Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1038 (2008).

6. 28 C.F.R. pt. 35, app. C.

7. 28 C.F.R. § 35.108.

8. 42 U.S.C. §§ 12111-12117, known as Title I of the ADA.

9. Centers for Disease Control and Prevention Weekly, Aug. 17, 2018, https://www.cdc.gov/brfssprevalence/index.html, last visited July 25, 2021.

10. Id.

11. Nat’l Inst. of Disability, Annual Disability Statistics Compendium, 2020 Annual Report on People with Disabilities in America 3 (2020), https://disabilitycompendium.org/ (last visited Aug. 10, 2021).

12. U.S. Dep’t of Health and Human Servs., Office on Aging, 2019 Profile of Older Americans (2020), https://acl.gov/aging-and-disability-in-america/data-and-research/ profile-older-americans (last visited Aug. 5, 2021).

13. Baby boomers refer to people born between 1946-1964. By the year 2030, all baby boomers will have reached 65 or older.

14. Nat’l Org. on Disability, Disability Inclusion Data—Where Does Your Company Stand (2020), https://www.nod.org/resources/data (Aug. 15, 2021).

15. Id.

16. Id.

17. See generally, 42 U.S.C. § 12182(a).

18. Id.

19. 42 U.S.C. § 12183.

20. Joseph P. Shapiro, No Pity, ch. 1 (Three Rivers Press, 1st ed. 1993).

21. The song "People" written by songwriter Jule Styne and performed by Barbara Streisand in 1964.

22. 42 U.S.C. §§ 12101, et seq.

23. "Public accommodations" and the term "business" or "businesses" is used interchangeably.

24. 42 U.S.C. § 12181(7).

25. Id.

26. Id. § 12100(b)(2).

27. The terms "business(es)" and "property owners" are used interchangeably with regard to ADA compliance responsibilities, though often times business(es) are tenants and not property owners.

28. Will Kenton, Investopedia (Dec. 2020), https://www.investopedia.com/terms/g/grandfatherclause.asp (last visited Aug. 14, 2021) (definition of grandfather clause: "A grandfather clause is an exemption that allows persons or entities to continue with activities or operations that were approved before the implementation of new rules, regulations, or laws. Such allowances can be permanent, temporary, or instituted with limits.").

29. Moeller v. Taco Bell, 816 F. Supp. 2d 831, 847 (N.D. Cal. 2011).

30. ADA Standards for Accessible Design, 28 C.F.R. app. A, pt. 36, https://www.ada.gov/2010_regs.htm (last visited Aug. 14, 2021).

31. Detectable warnings, sometimes referred to as truncated domes, are the patch of yellow bumps installed in walkways to warn visually impaired individuals that they are nearing a vehicular path.

32. U.S. Access Bd., Proposed Public Rights-of-WayAccessibility Guidelines, https://www.access-board.gov/prowag (last visited Sept. 29, 2021).

33. Cal. Code Regs. tit. 24, § 11B-247.1.2.5.

34. 2010 ADA Standards, 28 C.F.R. pt. 36, https://www.ada.gov/2010_regs.htm.

35. 42 U.S.C. § 12182(b)(2)(A)(iv).

36. Id. §§ 12181(9), 12182(b)(2)(A)(iv).

37. See id. § 12181(9).

38. 2010 ADA Standards, 28 C.F.R. pt. 36.

39. Id. § 36.304(d)(2)(i).

40. 28 C.F.R. pt. 36, § 36.402(b)(1).

41. Id. (Alterations that alter the path of travel must make path of travel accessible).

42. See Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1039 (9th Cir. 2008) (quoting Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 209, 93 S. Ct. 364 (1972)).

43. 42 U.S.C §§ 12205, 12188.

44. Arizona ex rel, Goddard v. Harkins Amusement Enters., Inc., 603 F.3d 666, 670 (9th Cir. 2010).

45. Reycraft v. Lee, 177 Cal. App. 4th 1211, 1215 (2009); Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1038 (2008) (plaintiffs’ disability was not at issue).

46. See Chapman v. Pier 1 Imports (U.S.), Inc., 631 F.3d 939, 945 (9th Cir. 2011).

47. U.S. Const. Art. III, § 2, cl.1; Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130.

48. Bates v. United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007) (quoting Lujan, 504 U.S. at 560-61).

49. 42 U.S.C. § 12188(a)(1).

50. Chapman, 631 F.3d at 947 ("[A]n encountered barrier must interfere with the particular plaintiff’s full and equal enjoyment . . . to constitute an injury-in-fact").

51. Moeller v. Taco Bell, 816 F. Supp. 2d 831, 848 (N.D. Cal. 2011).

52. The Unruh Act was amended in 1992 to add the ADA; the CDPA was amended in 1996. (See California Civil Code sections 51(f) and 54(c), respectively).

53. Since December 31, 1981 (forty years ago), California’s Building Code has incorporated physical accessibility standards for public accommodations.

54. See Cal. Civ. Code §§ 52(a), 54.3.

55. Cal. Civ. Code § 51.5(a).

56. Munson v. Del Taco, Inc., 46 Cal. 4th 661, 690 (2009).

57. Id.

58. Cal. Civ. Code § 52(a).

59. Molski, 164 Cal. App. 4th 786, 791.

60. Cal. Civ. Code § 54(a).

61. Id. § 55.56.

62. See Flowers v. Prasad, 238 Cal. App. 4th 930, 939.

63. Cal. Civ. Code § 54.3; Reycraft v. Lee, 177 Cal. App. 4th 1211, 1224 (2009).

64. Reycraft, 177 Cal. App. 4th at 1225.

65. Cal. Civ. Code §§ 55.51 et seq.

66. Id. § 55.52(a)(8).

67. Id. § 55.54.

68. Id. § 55.53(d)(1).

69. Id. §§ 51 et seq.

70. Id. §§ 54 et seq.

71. Id. § 55.32.

72. 2019 California Commission on Access Annual Report 32.

73. Id.

74. Id. at 34.

75. Id.

76. Yates v. Delano Retail Partners, LLC, 2012 WL 1094444 (quoting Dep’t of Justice, Technical Assistance Manuel on the American with Disabilities Act § III-1.2000, 833-34 (1994)).

77. See Botosan v. Paul McNally Realty, 216 F.3d 827, 834 (9th Cir. 2000).

78. 28 C.F.R. pt. 36 § 36.403(d).

79. 28 C.F.R. pt. 36, app. A; see 42 U.S.C. § 12183(a)(1); Moeller v. Taco Bell, 816 F. Supp. 2d 831, 847 (N.D. Cal. 2011).

80. 42 U.S.C. § 12182(b).

81. Id. § 12183(a)(2); Moeller, 816 F. Supp. 2d at 847.

82. The State of California maintains a list of CASp inspectors.

83. Cal. Civ. Code §§ 55 et seq.

84. Dep’t of Gen. Servs. of the State of Cal., Div. of the State Architect, https://www.dgs.ca.gov/DSA/Services/Page-Content/Division-of-the-State-Architect-Services-List/CASp.

85. 28 C.F.R. pt. 36.304.

86. I.R.C. §§ 40, 170.