Archive for the ‘Legislation’ Category




ADA Lawsuit Links

| Wednesday, June 11th, 2014 | Comments Off on ADA Lawsuit Links

I haven’t been keeping up with the online news, so this blog has been falling behind.

Things have been really busy.

Anyhow, here’s a list of some ADA compliance/lawsuit articles within the last 6 months.

That’s it for now. Toodles.

AB 223: Cure period Bill in CA legislation

| Wednesday, May 1st, 2013 | Comments Off on AB 223: Cure period Bill in CA legislation

There is a bill in the CA legislation, AB 223, that will introduce a cure period of 30-60 days for violations.

This does not get around the fact that issues that need to be fixed need to be fixed, even in the case of a lawsuit.  Anyone who understands the nature of disabled access violations understands that this bill will only impact items that are “Readily Achievable”, meaning items that are easy to fix.

For more complex items, such as parking striping or re-arranging  a restroom, costs can increase to the point of needing the approval of the local building authority.  Depending on where you are and how much traffic those departments get, 30-60 days may not be enough.

This means that as a stakeholder of property, you might as well fix these items immediately.

Better yet, why not get a CASp inspection?  This way you can have a timeframe on the order of YEARS to fix the items that need more attention.  AB 223 sounds like it offers relief to the layman, but 30-60 days is not enough.

This doesn’t even take into account that CASp will protect a site from future lawsuits FOREVER.  To read more about CASp go here: SB 1186 or contact us (866 982 3212 or help@accesssolutionllc.com)

 

To read the original article on AB 223 go here: http://www.foxandhoundsdaily.com/2013/02/ada-lawsuits-and-the-public-sector/

State of Access Lawsuits in California, and Nationally for 2013

| Thursday, December 20th, 2012 | Comments Off on State of Access Lawsuits in California, and Nationally for 2013

Despite the passage of SB1186, in an attempt to cure lawsuits, California is ending another year as a hotbed of litigation. This includes the increasing number of lawsuits for SB1186. While many of my professional contacts (architects, attorneys, mostly) have hoped that the passage of SB1186 would decrease the number of lawsuits by making it difficult for attorneys to send out demand letters — this has proved to be the opposite. The lowered amount for damages seems to have only provided more incentive for serial litigants to sue on an even broader basis, to retain the level of income they are accustomed to.

Nonetheless, the fact remains, the only real avoidance of a lawsuit is to be compliant. A tape measure does not lie. It does not vote for Democrats or Republicans. Should someone sue you for not having proper access, having proper access will go a long way to saying “Hello, I have proper access. You are wrong to bring me to suit.” In fact, having compliant access is the only sure fire way to win. Legislation like SB1186 is just a band-aid on a festering issue.

Keep in mind though, SB1186 is, after all, only California law. The issue of ADA lawsuits is proving more widespread than just California.

Some national professional groups have begun to notice that going to courts isn’t worth the hassle. Insurance could help, as a band-aid, but if you are sued too many times for being non-compliant, they will drop you. Compliant access is the only real long term solution. This property management magazine speaks very broadly on the issue… probably because state laws differ on this issue, especially for condominium spaces…. so national groups must rely on local expertise.

As issues of compliance become more noticed by professional property managers, so too are they more noticed by potential plaintiffs. Here’s an article about a possible serial litigant in Missouri.

If anything, signs point to ADA compliance and lawsuits mushrooming even further in 2013. Any thoughts on this?

This will be the last article I post this year. I hope you all have a very happy, access compliant holiday, whatever state you are in.

SB 1186 Part 1: Not the magic bullet businesses were hoping for

| Tuesday, November 6th, 2012 | Comments Off on SB 1186 Part 1: Not the magic bullet businesses were hoping for

Senate Bill 1186 couldn’t pass through California’s governmental processes fast enough for businesses. It was heralded as the end of “drive by lawsuits”, but the final bill may have fallen far short of that lofty goal.

Unfortunately for business owners, none of those parts does anything to curb the tide of accessibility lawsuits. In fact, predatory lawyers seeking to bolster their income may start filing even more lawsuits.

SB 1186 has nine important parts. This article focuses on the first three sections.

Part One of the law tries to stop “frivolous” lawsuits by requiring attorneys to send a copies of their demand letters to  the California Commission on Disability Access and, until January 1, 2016, to the State Bar. It also puts some limits on what can be in a demand letter. For example, what has been called “perfectly legal extortion” can no longer happen. In the past these serial litigants would demand a few thousand dollars, or they would file suit seeking tens of thousands of dollars from the target business.

However, because of the rise of CASp, very few letters use this tactic anymore anyway. And nearly all recent lawsuits are based on just a few actually legitimate complaints rather than the laundry list lawsuits of the last decade. This part of the new law is largely behind the times and outdated.

Part Two attempts to protect businesses which are already in the process of becoming compliant. Until now, even if you are in the middle of construction to fix an accessibility problem, a drive-by litigator could send you a lawsuit alleging that it wasn’t correct at the exact moment they visited — and legally they’d be right. In this case, 1186 does give a great benefit. It grants even greater protection for anyone who has hired a CASp. You don’t have to be fully compliant; you don’t even have to have started construction. So long as you’ve hired a CASp before you get sued, you are now protected.

Part Three is what everyone thought would be the magic bullet. It lowers the amount you can be fined from a mandatory minimum of $4000 to a minimum of $1000. However, that only applies if you are able to fix the problem within 60 days of being notified. This type of rush construction is great for contractors because they know you are under the gun so they charge whatever they like. Your total out-of-pocket expenses could even be higher than just ponying up the $4000. It’s also very important to understand that even the $1000 fine is “per offence”, which means the same litigant can say they visited your store or restaurant 10 times and multiply all of the fines by 10. Or 20. Or 50.

So, there are some benefits granted by SB 1186, but getting a CASp survey is still the only true legal protection against accessibility lawsuits.

You can read the law for yourself by clicking here: http://www.leginfo.ca.gov/pub/11-12/bill/sen/sb_1151-1200/sb_1186_bill_20120430_amended_sen_v98.html

Stay tuned for the second part soon.  Any questions about how SB 1186 applies to your site or looking to schedule an inspection?  Call us at 866 982 3212 or email us at help@accesssolutionllc.com.

Emergency Update on California Building Code

| Tuesday, August 21st, 2012 | Comments Off on Emergency Update on California Building Code

In order to better eliminate some more difficult compliance items, the Division State Architect has recommended some emergency updates to the 2010 California Building Code. The California Building Standards Commission has agreed to these changes. Many of the items, such as the Braille Signage as specified under the California Building Code are so different from the Americans with Disabilities Act 2010 that compliance with one standard means non-compliance with the other. So either way you can get sued.

These changes comes as a welcome alteration from the point of view of building owners, property managers and construction and design professionals working in California. Interestingly enough, many of these changes alter the sign requirements making the white papers released by Nova Polymers now outdated, as far as the California code is concerned.

I have reproduced these changes below for your convenience.

Emergency Express Terms 1 of 7 06/27/2012
EMERGENCY EXPRESS TERMS FOR PROPOSED BUILDING STANDARDS OF THE DIVISION OF THE STATE ARCHITECT REGARDING PROPOSED CHANGES TO CALIFORNIA BUILDING CODE CALIFORNIA CODE OF REGULATIONS, TITLE 24, PART 2 ACCESSIBILITY TO PUBLIC BUILDINGS,  PUBLIC ACCOMMODATIONS, COMMERCIAL BUILDINGS AND
PUBLICLY FUNDED HOUSING
Legend for Emergency Express Terms:
1. California amendment: California language will appear in italics text.
2. Amended, or repealed language: Amended or repealed language will appear in underline
and strikeout.
3. Adopted language: Adopted language will appear in underline.
4. Rationale: The justification for the change is shown after each section or series of related
changes.
5. Notation: Authority and reference citations are provided at the end of each section.
6. Abbreviations:
CBSC (California Building Standards Commission)
DSA-AC (Division of the State Architect – Access Compliance)
USDOJ (United States Department of Justice)
ADA Standards (2010 ADA Standards for Accessible Design)
EXPRESS TERMS
ITEM 1
1104B.3 Auditoriums, assembly halls, theaters and related facilities. …
1104B.3.9 Designated aisle seats. In addition to the wheelchair spaces required, 5 percent, but not less than one, of all fixed aisle seats, shall be designated aisle seats with no armrests on the aisle side, or with removable or folding armrests on the aisle side. The designated aisle seats shall be those located closest to accessible routes. Each such seat shall be identified by a sign or marker with the International Symbol of Accessibility (see Figure 11B-6). Signage notifying patrons of the availability of such seats shall be posted at the ticket office. Signs and markers shall comply with Section 1117B.5.1 items 2 and 3, as applicable.


Statement of Reason: During the 2010 rulemaking cycle, DSA-AC intended to incorporate the basic requirement of 2010 ADA Standards, Section 221.4, which requires at least five percent of the total number of aisle seats provided shall be designated aisle seats. Due to an inadvertent error, the approved amendment indicated at least five percent of fixed seats rather than aisleseats. DSA-AC is proposing to amend the provisions of 1104B.3.9 to correct this error.
Authority: Gov. Code§ 4450
Reference: Gov. Code§ 4450-4461, 12955.1 & 14679; Health & Safety Code§ 18949.1 &
19952-19959 & Vehicle Code§ 22511.8
ITEM 2
1115B.4 Accessible fixtures. …
1115B.4.1 Accessible water closets. Water closets required to be accessible shall comply with
this subsection:


1. The centerline of the accessible water closet fixture shall be 16 inches (405 mm) minimum and 18 inches (457 mm) maximum from the side wall or partition. On the other side of the water closet, provide a minimum of 28 inches (711 mm) wide clear floor space if the water closet is adjacent to a fixture or a minimum of 32 inches (813 mm) wide clear floor space if the water closet is adjacent to a wall or partition. This clear floor space shall extend from the rear wall to the front of the water closet.


Exception: The centerline of accessible water closets located in ambulatory accessible compartments shall be 17 inches (430 mm) minimum and 19 inches (485 mm) maximum from the side wall or partition.


2. Provide clear floor space and maneuvering space at accessible water closets in compliance with Section 1115B.4.1, Item 2. Refer to Section 1115B.3.1, Items 4.2 and 4.3 for additionally required maneuvering space at multiple-accommodation toilet facilities. Refer to Section 1115B.3.2, Item 3 for additionally required maneuvering space at single-accommodation toilet facilities.

2.1…
2.2…
2.3…

Exception: An adjacent fixture at the rear wall is permitted to encroach into the required
clear floor space at the wide side of the water closet where clearances are provided in
compliance with Section 1115B.4.1, Item 1.

Statement of Reason: DSA-AC is proposing to amend this section to align the CBC with the 2010 ADA Standards, Section 604.2. The requirement to locate the centerline of a water closet 18” absolute from a side wall or partition is being revised to provide a range of 16” minimum to 18” maximum from the side wall or partition. An exception is provided for water closets in ambulatory accessible toilet compartments. The exception provides that water closets within ambulatory accessible compartments be located 17” minimum to 19” maximum from the side wall or partition. In construction, the technological capacity to achieve an exact and precise placement of a water closet can be quite difficult. Variations in wall finish thicknesses or structural members can easily influence the final constructed condition, especially in concrete slab construction. Specifying a range rather than an absolute value for the location of the centerline of a water closet will better ensure that facilities accomplish the level of accessibility intended.
Additionally, DSA-AC is proposing to amend this section to delete the provision and exception which allow fixtures adjacent to an accessible water closet at least 28 inches from the water closet on the wide side, and to delete the provision which allows a wall or partition at least 32 inches from the water closet on the wide side. Under the 2010 ADA Standards, Sections 604.3.1 and 604.3.2, these elements are not permitted to overlap the required clear floor space at a water closet. Clear floor space requirements for water closets, as indicated in CBC 1115B.4.1, Item 2,
accurately reflect the 2010 ADA Standards clear floor space requirements for water closets not within a compartment (604.3.1), wall mounted water closets within a compartment (604.8.1.1) and floor mounted water closets within a compartment (604.8.1.1), and the current language in these sections remains unchanged.
Related code changes are proposed for Figures 11B-1A and 11B-1B for consistency.
Authority: Gov. Code§ 4450
Reference: Gov. Code§ 4450-4461, 12955.1 & 14679; Health & Safety Code§ 18949.1 &
19952-19959
ITEM 3
1115B.8 Accessories. …
1115B.8.4 Toilet tissue dispensers. Toilet tissue dispensers shall be located on the wall within 12 inches (305 mm) of the front edge of the toilet seat, wall or partition closest to the water closet, 7 inches (180 mm) minimum and 9 inches (230 mm) maximum in front of the water closet measured to the centerline of the dispenser, mounted below the grab bar, with the outlet of the dispenser at a minimum height of 19 inches (485 mm), and 36 inches (914 mm) maximum to the far edge from the rear wall. Dispensers that control delivery or that do not permit continuous paper flow shall not be used. See Figure 11B-1A.
Statement of Reason: DSA-AC is proposing to amend this section to align the CBC with the 2010 ADA Standards, Section 604.7. The CBC currently requires toilet tissue dispensers to be located in accessible water closet compartments within 12 inches of the front edge of the toilet seat and within 36 inches of the rear wall. The amendment to this section will require the centerline of the toilet tissue dispenser to be within a range of 7-9 inches in front of the water closet. Additionally, language consistent with the 2010 ADA Standards, Section 604.7 is being added to clarify the regulated height of the toilet paper dispenser is measured to the outlet of the dispenser.
Authority: Gov. Code§ 4450
Reference: Gov. Code§ 4450-4461, 12955.1 & 14679; Health & Safety Code§ 18949.1 &
19952-19959
ITEM 4

1117B.1 Accessible drinking fountains. Where drinking fountains are provided, they shall comply with this section: …

4. Operable parts, spout height and location. The bubbler shall be activated by a manually operated system complying with Section 1117B.6, Item 4 that is front mounted or side mounted and located within 6 inches (152 mm) of the front edge of the fountain or an electronically controlled device. The bubbler outlet orifice shall be located within 6 inches (152 mm) of the front edge of the drinking fountain and within 36 inches (914 mm) of the floor. The water stream from the bubbler shall be substantially parallel to the front edge of the drinking fountain. Spout outlets shall be 36 inches (914 mm) maximum above the finish floor or ground. The spout shall be located 15 inches (381 mm) minimum from the vertical support and 5 inches (127 mm) maximum from the front edge of the unit, including bumpers.

5. Water flow. The spout shall provide a flow of water at least 4 inches (102 mm) high so as to allow the insertion of a cup or glass under the flow of water minimum and shall be located 5 inches (127 mm) maximum from the front of the unit. The angle of the water stream shall be measured horizontally relative to the front face of the unit. Where spouts
are located less than 3 inches (76 mm) of the front of the unit, the angle of the water stream shall be 30 degrees maximum. Where spouts are located between 3 inches (76 mm) and 5 inches (127 mm) maximum from the front of the unit, the angle of the water stream shall be 15 degrees maximum. On an accessible drinking fountain with a round or oval bowl, the spout must be positioned so the flow of water is within 3 inches (75 mm) of the front edge of the fountain.

 

Statement of Reason: DSA-AC is proposing to amend this section to align the CBC with the 2010 ADA Standards, Sections 602.4, 602.5, and 602.6. CBC Section 1117B.1, Item 4 is being amended to incorporate language from 2010 ADA Standards Section 602.4 which requires the drinking fountain spout to be located 15 inches minimum from the vertical support and 5 inches maximum from the front edge of the unit, including bumpers. A title for this section is also being added.CBC Section 1117B.1, Item 5 is being amended to incorporate federal language which requires a
water flow location of 5 inches maximum from the front of the unit. Language is also being added to describe acceptable angles of water flow, relative to the front of the drinking fountain, based on varying spout locations as measured from the front of the unit. A title for this section is also being added.
A related code change is proposed for Figure 11B-3A for consistency.
Authority: Gov. Code§ 4450
Reference: Gov. Code§ 4450-4461, 12955.1 & 14679; Health & Safety Code§ 18949.1 &
19952-19959
ITEM 5
1117B.5 Signs and identification. …
1117B.5.3 Proportions. Characters Visual characters on signs shall be selected from fonts that have a width-to-height ratio of between 3:5 (60 percent) and 1:1 (100 percent) where the width of the uppercase letter “O” is 60 percent minimum and 110 percent maximum of the measured by the width of the uppercase letter “O” and height of the uppercase letter “I”, and a stroke width-toheight ratio of between 1:5 (20 percent) and 1:10 (10 percent) measured by the width and height of the uppercase letter “I”. Stroke thickness of the uppercase letter “I” shall be 10 percent minimum and 20 percent maximum of the height of the character.

1117B.5.5 Raised characters and pictorial symbol signs. When raised characters are required or when pictorial symbols (pictograms) are used on such signs, they shall conform to the following requirements:

1. Character type. Characters on signs…
2. Character size. Raised characters…
3. Pictorial symbol signs (pictograms). Pictorial symbol signs…
4. Character placement. Characters and Braille…
5. Proportions. Raised characters on signs shall be selected from fonts where the width of the uppercase letter “O” is 60 percent minimum and 110 percent maximum of the height of the uppercase letter “I”. Stroke thickness of the uppercase letter “I” shall be 15 percent maximum of the height of the character.
Statement of Reason: DSA-AC is proposing to amend CBC Section 1117B.5.3 to address character proportions and stroke width requirements of fonts used for visual signs to align with the requirements of the 2010 ADA Standards, Sections 703.5.4 and 703.5.7.DSA-AC is also proposing to amend CBC Section 1117B.5.5 to add Item 5 which addresses character proportions and stroke width requirements of fonts used for tactile signs to align with
the requirements of the 2010 ADA Standards, Sections 703.2.4 and 703.2.6.
Authority: Gov. Code§ 4450
Reference: Gov. Code§ 4450-4461, 12955.1 & 14679; Health & Safety Code§ 18949.1 &

19952-19959
ITEM 6
1117B.5 Signs and identification. …
1117B.5.7 Mounting location and height. Where permanent identification signs are provided for rooms and spaces, signs shall be installed on the wall adjacent to the latch side of the door. Where there is no wall space on the latch side, including at double leaf doors, signs shall be placed on the nearest adjacent wall, preferably on the right.
Where permanent identification signage is provided for rooms and spaces they shall be located on the approach side of the door as one enters the room or space. Signs that identify exits shall be located on the approach side of the door as one exits the room or space.
Mounting height shall be 60 inches (1524 mm) above the finish floor to the center line of the sign. Signs with raised characters and Braille shall be located 48 inches (1220 mm) minimum above the finish floor or ground surface, measured from the baseline of the lowest line of Braille and 60 inches (1525 mm) maximum above the finish floor or ground surface, measured from the baseline of the highest line of raised characters. Mounting location shall be determined so that a person may approach within 3 inches (76 mm) of signage without encountering protruding objects or standing within the swing of a door.

See also Section 1115B.6 for additional signage requirements applicable to sanitary facilities.
Statement of Reason: DSA-AC is proposing to amend this section to align the CBC with the 2010 ADA Standards, Section 703.4.1. The 2010 ADA Standards require tactile characters on signs to be located 48 inches minimum above the finish floor to the baseline of the lowest tactile character, and 60 inches maximum above the finish floor to the baseline of the highest tactile character. The CBC currently requires identification signs with tactile text to be mounted 60 inches above the finish floor to the centerline of the sign. DSA-AC is proposing to require tactile characters on signs to be located 48 inches minimum above the finish floor to the baseline of the lowest tactile character, and 60 inches maximum above the finish floor to the baseline of the highest tactile character.

Authority: Gov. Code§ 4450
Reference: Gov. Code§ 4450-4461, 12955.1 & 14679; Health & Safety Code§ 18949.1 &
19952-19959
ITEM 7
1134B Accessibility for Existing Buildings …


1134B.2 General. When alterations, structural repairs…


1134B.2.1 A primary entrance to the building or facility and the primary path of travel to the specific area of alteration, structural repair or addition, and sanitary facilities, drinking fountains, signs and public telephones serving the area.


Exceptions:
1. …
2. …
3. …
4. …
5. If an element listed in Section 1134B.2.1, Exception 5, Items 5.1 through 5.5 has been constructed or altered in accordance with the accessibility requirements in either the 2007 or 2010 California Building Code, retrofit of that element to reflect the incremental changes in the August 1, 2012 Emergency Supplement to the 2010 California Building Code shall not be required solely because of an alteration to an area served by the element.
5.1 Accessible water closet – distance to adjacent wall or partition.
5.2 Accessible water closet – encroachment of the adjacent fixture at the rear
wall into the required clear floor space at the wide side of an accessible
water closet.
5.3 Toilet tissue dispenser – distance in front of water closet.
5.4 Drinking fountain spout outlet (bubbler outlet) – distance from front edge of
the fountain.
5.5 Drinking fountain spout – angle of water stream.

Statement of Reason: DSA-AC is proposing to add an exception to this section to coordinate with the 2010 ADA Standards, Section 35.151(b)(4)(ii)(C) of 28 CFR Part 35, which includes a ‘safe harbor’ provision for path of travel elements constructed or altered in accordance with the 1991 ADA Standards. This federal provision does not require path of travel elements to be modified to reflect incremental changes in the 2010 ADA Standards solely because of an
alteration to an area that is served by that path of travel. DSA-AC is proposing to amend this section to include a similar provision which provides relief from the requirement to upgrade specified elements constructed or altered in accordance with the accessibility requirements in either the 2007 or 2010 California Building Codes. The proposed exception will not require the specified elements to be modified to reflect incremental changes in the Emergency Supplement to the 2010 California Building Code solely because of an alteration to an area served by that element. This exception includes a list of the five elements which will qualify for the exception. Only elements proposed for amendment in this emergency rulemaking package have been included in the list of qualifying elements.

DSA-AC believes that this proposed amendment will ensure access for individuals with disabilities to buildings and facilities, while providing financial relief for alteration projects subject to the Emergency Supplement to the 2010 California Building Code. This amendment does not provide a blanket exemption for facilities. If an area is undergoing alteration, and required elements serving that area do not comply with either the 2007 or 2010 California Building Codes, then those elements must be brought into compliance with all applicable accessibility code requirements, including those items in the Emergency Supplement to the 2010 California Building Code.
Authority: Gov. Code§ 4450
Reference: Gov. Code§ 4450-4461, 12955.1 & 14679; Health & Safety Code§ 18949.1 &
19952-19959

If you want to see the original state posting it can be reached here: http://www.documents.dgs.ca.gov/dsa/access/2010CBC_Emergency-Express-Terms_06-27-12.pdf

As ADA experts we keep up with the latest code changes, and stay on top of this complex changing field. If you are interested in getting an inspection why wait? Avoid an Accessibility Lawsuit! Your site has many of these conflicts already, you should address those conflicts and remove the contradictory code elements from your site so you are compliant.

If you have any questions or comments call 866 982 3212 or email us at help@accesssolutionllc.com to schedule an inspection or ask questions about how accessibility effects your site.

CASp May Not Provide Some of its Intended Protections when Sued in Federal Court Under the ADA

| Tuesday, August 7th, 2012 | Comments Off on CASp May Not Provide Some of its Intended Protections when Sued in Federal Court Under the ADA

Benefits of CASp may be only effective as far as the stay goes if sued in State Court. There are additional items such as attorney’s fees which still provide benefit to clients of CASp.

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.

Read the entire article here: http://articles.jmbm.com/2010/11/23/casp-may-not-provide-some-of-its-intended-protections-when-sued-in-federal-court-under-the-ada/

Nonetheless the take away is that CASp is still a superior product, although costlier. It provides some definition when it comes to reasonable attorneys fees, but its effectiveness may be limited to State Court only.

Interested in a CASp inspection? YTA offers ADA reports and CASp reports. Questions or comments? Call us for a quote. 866 982 3212 or email us at help@accesssolutionllc.com

Working to Streamline Accessibility Laws

| Tuesday, July 17th, 2012 | Comments Off on Working to Streamline Accessibility Laws

SB1168 moves one step closer to becoming law. This should provide relief to businesses over ‘technical violations’.

Last week, the AIACC testified before the Assembly Judiciary Committee in support of SB 1186 (Steinberg/Dutton). SB 1186 seeks to promote compliance with the state’s disability access laws without increasing unwarranted litigation. The bill easily passed and now rests in the Assembly Appropriations Committee.

The language contained in the current version of the bill focuses primarily on how an attorney is to provide a written advisory (demand letter) to a building owner. However, the SB 1186 working group (of which the AIACC is part) established by Senators Steinberg and Dutton continues to seek legislative proposals to provide legal relief to those affected by the issues surrounding the Federal ADA, the California Building Code (California Code of Regulations, Title 24) and California’s Unruh Civil Rights Act—all without compromising access compliance or civil rights.

For architects, some of the most significant aspects of the effort are the proposals being generated by the working group. These include the Division of the State Architect’s (DSA) efforts to align the ADA with the access provisions of Title-24 and the improvement of the Certified Access Specialist Program (CASp). Also to be considered is the inclusion of language that addresses issues such as when an access code violation can be considered a technical violation (think handicap parking signage mounted three inches off-center of the parking stall), versus a true access violation (a barrier to access, e.g., a 24” wide restroom door in a public accommodation).

Because the alignment of Title 24 and the ADA plays a key role, the working group is depending on the DSA to deliver on its ongoing efforts for preparing the update of California’s 2013 building code for accessibility. As you may be aware, since May, the DSA has held a series of Access Code Forums, seeking input and comments from accessibility stakeholders, interested parties, and the general public as part of its emergency rule-making efforts to align state and federal access regulations. One area of significant importance that has been included in this effort is construction tolerances (allowing for a specified dimensional range). Whether dimensional, or in the form of open-mindedness, tolerance will certainly play a key role in resolving this issue.

You can get the original text here: [AIA California Council]

Pool Facilities Get Another Extension to Be ADA Compliant

| Tuesday, June 5th, 2012 | Comments Off on Pool Facilities Get Another Extension to Be ADA Compliant

 

Update on the Pool requirement for hotels under the ADA.

Hotels, water parks, and other facilities with pools recently got another extension to comply with American Disability Act standards, the Associated Press reports.

The Justice Department initially set a March 15, 2012 deadline, but last week extended it to early next year. The ADA rules in question, published in 2010, require new pools to have built-in lifts. Owners of older pools hoped they could be ADA compliant with portable lifts, but in January the Justice Department issued technical guidance, requiring fixed lifts at existing pools. The document was updated May 24.

Also, there’s an exemption that allows existing pools to avoid the requirement if owners find compliance is “not readily achievable.” Determining if a pool could use that exception, the AP reports, could be difficult.

On Thursday, the Justice Department said pool owners who bought portable lifts before the previous March 15 deadline would be in compliance, providing the lift is in place when the pool is open.

“We got such an overwhelming response indicating the widespread misunderstanding of the law and indicating that the pool lift manufacturers are having trouble meeting the demand, so we wanted to make sure people had enough time,” Eve Hill, a senior attorney in the Justice Department’s civil rights division, told the AP.

Some say the hotel industry is behind the deadline extention. They also blame election year politics.

“It’s a little disingenuous to say that came out of nowhere,” Heather Ansley, a lawyer with United Spinal Association, told the AP.

You can read the original story here.

Any thoughts or comments? Call us at 866 982 3212 or email us at help@accesssolutionllc.com

New Construction Triggers the ADA

| Wednesday, August 31st, 2011 | 1 Comment »

Much of the information we put out here is to emphasize that many of the ADA violations are addressed easily. Some are not.

This article is taken from [Facilities.net.

I’m Dan Hounsell, editor of Maintenance Solutions magazine. Today’s topic is, facility renovations and ADA.

Maintenance and engineering managers undertaking renovations in institutional and commercial facilities need to be aware of the impact on the project of requirements under the Americans with Disabilities Act, or ADA.

The requirements for readily achievable barrier removal under ADA began Jan. 26, 1992, and have continued since then. Organizations must remove barriers, with a few exceptions, regardless of any work being done.

Anytime a facility undergoes renovations where access barriers exist, the organization must spend 20 percent of the construction costs on removing these barriers from the path of travel. For ADA purposes, the path of travel includes water fountains and restrooms. Any renovation to a primary function area triggers this requirement. The phrase primary function area applies to an area where the activities are germane to the business, such as a bank�s teller stations.

As with the model building code — The International Building Code and the American National Standards Institute — ADA does not require barrier removal on the path of travel that exceeds 20 percent of the cost of the renovation. The major difference in this regard between ADA requirements and building codes is that the ADA requires barrier removal in existing buildings, regardless of renovations. Building codes do not come into play until renovations, alterations or new construction occurs.

Managers can find more specific information in the 1991 ADA Standards for Accessible Design, Sec.36.403 Alterations: Path of travel. ADA guidelines typically supersede a state or local building code, unless the code provides for greater or equal protection of individuals with disabilities.

I would also like to add that it’s not commonly understood that new construction can trigger the ADA. One fear of owners is that when attempting to ‘do the right thing’ one can sometimes be dragged by construction law into doing more than the minimum, especially in how the ADA influences the building code. (Many code officials we’ve spoke with don’t realize that the ADA trigger is there).

Now you’ll also get many savvy attorneys and architects that will claim that ‘legally non-conforming’ situations do not require any kind of addressing. They rightly understand that not touching existing items won’t trigger ADA compliance — but this leads to even deeper problems.

At first, their advice sounds great, as owners don’t want to hear that they need to do anything. But what these professionals don’t understand that if those ‘legally non-conforming’ structures pose fixable ADA violations, leaving those situations to persist will continually trigger even more ADA work. As time goes on, those non-compliant situations will accrue an increase in what needs to be remedied.

In other words, if you have a non-compliant ramp in your facility newly placed in 2003, and you don’t fix it right away, in 2010, not only will you be required to fix that ramp — you will also have 7 years of budget in which you could have fixed the ramp and didn’t. In court, a suing attorney will claim that what was financially remediable in 2 years is ‘easy’ over a 7 year period. That situation will look bad, as though you never intended to fix that ramp and that you are willfully discriminating.

We have heard this so often, as many owners have come to us having fallen into this situation, when they have the panic of court bearing down on them. Don’t let yourself fall into this situation! Get our exposure report so as to make informed decisions on what you are liable for so you can address it right away.

Questions? email us at help@accesssolutionllc.com or call us at 866 982 3212.

Effectiveness of SB1608 in Federal Court

| Tuesday, July 19th, 2011 | Comments Off on Effectiveness of SB1608 in Federal Court

CASp, the Certified Access Specialist Program offers a variety of benefits to businesses that get a CASp certification.  The advantages can be further gleamed from the California Chamber of Commerce website [link: Advantages of CASp for businesses].  The main advantages of CASp certification are many (including a 90 day stay and a limit of $4k per effected violation per visit).  Yet because CASp is California law and the ADA is Federal law, many business owners we’ve talked with are concerned about the effectiveness of SB1608. Business owners concerned about Federal Court sGuits often ask:

“Is CASp worth getting?”

A recent court case provides a real life example of this issue.  A business which had CASp certification was sued in Federal Court.  Now, Federal judges do not have to honor the California law, for instance, they do not have to  grant the 90 day stay.  This judge chose not to.

So, is CASp worth it?

Keep in mind that the differences between Federal and State court for ADA lawsuits are many.  We can’t go over these things exhaustively but we will outline the general principles at this current time.  Keep in mind that your case is unique and if you are under a lawsuit you must consult an attorney, don’t rely on this post for advice — this article is covering a topic.  We are not giving legal advice.

If you are sued in Federal Court, you have the possibility of fixing the issue in question in order to make the lawsuit go away.  Also, if you offer to settle and the plaintiff attorney refuses the settlement and you fix the issue, you may not have to pay for their attorneys fees (the judge may waive those damages).

In California Court, you fixing the issue in question doesn’t make the issue go away.  Violations valid at the time of the encounter remain violations for which damages under the Unruh Act automatically entitle the plaintiff party $4k.  Furthermore, the Unruh Act also specifies that attorneys fees will be paid.

So while CASp can’t provide coverage into areas of Federal law, it does provide some stronger incentives for plaintiffs to sue a CASp business under Federal Court.  If the plaintiff takes you to California court, CASp goes into effect, and you can go straight to arbitration.  However, they take you to Federal Court, you may still get arbitration… if you don’t, your fighting chances are better — you can STILL fix the issue in question and win the suit that way… an option we are told, is not available in California Court.

So overall, in answering the question above, the answer is:

YES!

Without CASp, a savvy plaintiff will take you to California Court, in which you will pay the same $4k plus attorney’s fees (potentially tens of thousands of dollars). With CASp you either pay $4k at most, or you can go to Federal court and have a chance at making the issue go away. Get CASp now to cover yourself!

Any questions or concerns?  Call us at 866 982 3212 or email us at help@accesssolutionllc.com.