The following is a guest article by a CASp certified architect:

SB 1186 Passes Senate Judiciary Committee on May 8

By Yung Kao, CASp CBO NCARB

May 10, 2012

When the U.S. Congress passed the Americans with Disabilities Act (ADA) in 1991, some people called it a “Bill of Litigation” as it requires building and business owners to retrofit existing buildings and remove “architectural barriers” that were created prior to the law. Combined with California’s Unruh Civil Rights Act and other anti-discriminatory laws, the ADA became a much more potent mechanism for lawsuits.

About 12,000 ADA claims were filed nationwide from 1991 to 2011, and about 8,000 of them were filed in California within the past 8 years alone.  These filed lawsuits represents only a fraction of the actual number of threats that have been made on businesses as most threat of lawsuit results in a settlement rather than a court action.

A big portion of those cases in California have been filed by a couple dozen lawyers. These self-proclaimed access rights crusaders are generally perceived by the business community as “drive-by” litigants.  Some of them do appear to be more interested in collecting monetary settlements than improving access on the premises they sue. These cases are often filed in large batches by geographic location.  The main vehicle for these threats originates in a demand letter, stating that the stakeholder pay money otherwise a lawsuit situation will erupt.

Most businesses and property managers settle, as a court battle could result in a larger fine, along with an increased payment to the opposing attorney.

In response to the outcry from the business community, California has at least six bills dealing with accessibility claims in the current legislative session. An unexpected event to accentuate this drama is an open letter in March from Senator Dianne Feinstein to California Senate President pro Tem Darrel Steinberg, urging him to use his leadership to advance legislation that would curb what she called “predatory lawsuits” and “coercive demand letters” that are “unfairly and unnecessarily threaten the viability of some small businesses in our State”. The letter specifically mentioned California’s SB 1186 introduced by Republican State Senator Dutton as an example of such legislation. Steinberg’s reply letter elaborated on SB 1608 of 2008 to illustrate the legislature’s efforts in deterring frivolous ADA claims. He further explained that the “90 day to cure” provision in SB 1186 is inconsistent with other protected categories in California’s Unruh Civil Rights Act.  This inconsistency with the other protected civil rights in the Unruh Act explains why any bills with provisions to include a cure period are consistently defeated.

In April, Steinberg took over SB 1186 and introduced an extensive amendment to the bill. The 90-day period to cure was deleted from the bill, while other similar bills still containing various time periods to cure, have been defeated.  Because of the lack of a cure period, Steinberg’s version of SB 1186 became the only accessibility bill in this session that was being seriously considered.

If passed, the following three major provisions would become law:

1.  Prior to filing a lawsuit, no attorneys or other parties may serve a letter that demands monetary settlement or implies that business and building owners may be liable for damages and attorney fees because of alleged ADA violations.
2. Attorneys who intend to file an ADA claim must serve a notice to the intended defendants at least 30 days prior to the filing.
3. Commercial property landlords need to disclose to prospective tenants in the lease agreements whether the premises are CASp-inspected or not.

Four accessibility bills were heard by the Assembly Judiciary Committee on May 8, and on that same day the Senate Judiciary Committee processed another two accessibility Bills, including SB 1186 as amended by Steinberg.  The Committee passed the Bill 4-1, with the descending vote interestingly by none other than the Senate Majority Leader and author of SB 1608, Senator Ellen Corbett.

It is almost inevitable that this Bill resort to the CASp inspection as established in SB 1608 in 2008 as the real solution. A major goal of the Construction-related Accessibility Standards Compliance Act (CASCA) of 2008 is to devise some sort of protection for the property and business owners who have made a proactive effort to obtain compliance or are in the process of obtaining compliance. The CASCA considers a comprehensive survey of the property by a (CASp) key evidence to define that proactive effort.

The CASp program was a result of two years negotiation among different stakeholders, and was widely hailed by the business communities including California Chamber of Commerce, California Restaurants Association, California Business Properties Association and California Hotel and Lodging Association. Though SB 1186 would not mandate any CASp inspections, it does reaffirm that the CASp inspection program is still the best solution to reduce and eventually eliminate ADA claims in California.

While SB 1168 would not eliminate ADA lawsuits entirelyhopefully it would effectively curtail the scare tactic of demand letters.  The only full protection against ADA claims, however, is to fully comply with the laws, and that begins with a CASp inspection.

You can reach Yung Kao directly for comments and inquiries about his services at his direct email: accessolution@att.net, or his direct number: 626.209.9709

Alternately, you can find out more about the details of CASp and its many benefits by emailing us at help@ytaccess.com or calling us at 866 982 3212.  Any messages you leave for Yung with us, we will also forward to him.

This blog is about how people who have control over a building situation can achieve ada accommodations. So we are very heavy on focusing with the end result of what is a long process in construction and design.

We talk much about the requirements of the code, interpretations and the law for disabled access. But in the pursuit of cost effective reasonable accommodations, we shouldn’t lose sight of what disabled access is for. With the focus on cost, business doesn’t always make the best of what is world populated by humans with human need.

Quoting Mia on her latest blog: Cant rock the boat hell if we have to well sink it

Over the life of this blog ,it has been my intention to shine a light on any person or group who takes money or gets kudos for being advocates and angels for the disabled community but in reality are more the problem than the cure.

The reality of the code is that there are people who need those requirements. The requirements of the code here in the United States have been the result of years of study through the access-board, and represent the best cost-benefit analysis that government can offer between minimum cost and maximum benefit.

So while this entry isn’t so much about specific numbers here, I do want to remind you all, before we get back to our normal stream of access tips that the end result of any disabled compliance needs to be of benefit to the people who would use it. Another quote:

Another example, a internist who proclaims she is disabled friendly with full access and expert at all medical problems pertaining to life in a wheelchair, we arrive her doorways are too small for chairs her toilet door has a 14 inch step and she proclaims that I shouldn’t complain and be thankful for what ever i get? Folks it’s bad when doctors or advocates are taking government money or worse taking ours and they know nothing or even worse they don’t give a damn, but I have started to receive notes from parents telling me not to rock the boat, they’ll put up with second best the doctor is “really nice” he is incompetent but nice? If parents don’t stand and yell ”hell no” who will? The kid in the chair can’t stand at all, a baby with cerebal palsy can’t scream help. We cannot tolerate incompetence, were not fixing a car that can have the engine replaced, its our life, it’s the life of our children. If these so called experts don’t know a damn thing i dont care if they can put on puppet shows, let them do them for someone else but their not getting their incompetent hands on our most precious posessions our loved ones

Mia’s writings aren’t for everyone, as there’s plenty of strong emotion in there — and no wonder — considering how misunderstood disabled access is! We’ve heard the horror stories of individuals who go up and down streets suing businesses for disabled access — now while Mia and the millions of others like her (who are disabled and angry) don’t do this — only a handful do — you do begin to get a sense of where this frustration can lead to in the hands of a few explosive individuals.

If you want to understand more from her point of view, that of your average disabled patron, please take a look at her blog Disabled Access Denied. Otherwise, we will return to the regular accessibility tips in the next few days.

One of the complaints by various building officials, property managers and business owners who are, at times, angry for having to pay for or enforce laws that require facilities to be made have said to me:

• I never see that platform lift being used
• We never see those people come in here

Both of these complaints stem from a misunderstanding of both the real accommodations have for people who have disabilities and how many disabled individuals are out and about.

First some statistics. The answer? At least one in five. Don’t believe it? See this source, Access to Disability Data citing a very old source, from the early 1990s. Given that this year, of 2011, the first baby boomers have reached 65, AND The number of disabled veterans is rising especially as the United States has more than three military actions going on today, you can be sure that there are plenty of disabled citizens out today.

Now even if you provide accommodations that’s not enough to get people with disabilities into your establishment. I won’t talk about marketing or sales funnel, but installing a platform lift isn’t enough — it’s really possible that your external path of travel is so incompliant that the disabled can’t even get in the door. Plus a business that is known to be disabled unfriendly is likely to not get business from the disabled. A family taking grandma out to dinner isn’t going to take her to a restaurant that will embarrass her or cause her difficulty.

With this in mind, I want to draw attention to a recent connection we’ve made, a blog by one Mia G Vayner who runs a blog: “Disabled Access Denied“. With the advent of social media online and social networking, Vayner is one of the rising voices of a growing disgrunted and traditionally under-represented group of people.

I had invited Vayner to write herself an introduction, and it is presented below.

Disabled Access Denied was the message I got every time I rolled up to a restaurant that wasn’t accessible or a doctors office that had 10 steps up to its door or my favorite — when store owners used their existing disabled ramps as prime retail space.

My name is Mia G. Vayner and I’ve never been known for taking these types of injustices quietly. My friends will tell you I have always had a disability: a quick wit, a sharp mind and a total inability to handle stupidity. If you’re asking about the wheels under my ass, its a hereditary neurological disorder that is degenerative and makes walking and standing with any regularity impossible. This has been my life for about 5 years. When you mix my friends opinion of me with the ever growing lack of care and concern by those in power for the rights of the wheelchair bound my choices became scream or do something about it. The first meant I need to put a lawyer on retainer and the second involved starting a blog. That is how www.disabledaccessdenied.com was born.

My blog serving notice to those who say through their laws, their lack of adherance to laws, their complete disregard or simple lack of thought for the disabled, we’ll photograph, we’ll blog and we’ll tell the powers that be that until they make it right, until they Respect our Existance, they can Expect our Resistance.

Now our business blog here at YTA’s main focus is to you business owners and contractors — so between Vayner and ourselves, we address different audiences. Plus, we are located in Los Angeles — Disabled Access Denied has strong roots in New York City. So there are some differences in where we are coming from.

Nonetheless, I think it a good opportunity for many of you to take a look at Disabled Access Denied and understand where your direct customers and end-users of construction come from — what their interests are and how strongly inaccessible construction impacts their ability to just get from point A to point B.

Often times too, our focus is on the letter of the code, and as a result there is opportunity to forget what the end result should be. Here at YTA we don’t just want to help you provide legally compliant paths of travel and access to goods of services but also to provide good and safe customer experience so that people with disabilities can enjoy the same benefits and integration as their non-disabled peers.

So please take a look at the wealth of articles and information, and think about how your customer experience — especially those who are of different ability — are impacted by your customer experience. A good starting place is to sit in a wheelchair and try to get in the door, and use your restroom.

Contact information for Vayner can be gotten at Contact info or you can email her at disabledacessdenied@Gmail.com or follow her on her twitter at Disableddenied.

As always if you have specific questions about accessibility at your site you can contact us at 866 982 3212 or help@ytaccess.com

This is some useful information from SRS Smith which provides Swimming Pool Equipment.

They are located in Oregon and Tennessee but should be familiar with CA pool laws. Their guides are published and I have linked them below as for the Americans with Disabilities Act (2010), they are useful.

Remember, under the ADA 2010 “safe harbor” does not apply to swimming pools which need to be compliant for the new requirements effective back in Sept 15, 2010.

Accessible Swimming Pool Guide

ADA Swim Equipment Guide

So if you have a pool and any equipment associated with pools, please look at these standards and see if your pool access is ADA compliant. Also you can contact them at http://poollifts.com/contact/ if you have specific Pool Questions!

As always feedback, comment and questions are appreciated.  Call me at 866 982 3212 or email me at help@ytaccess.com.  We want to hear your concerns, thoughts, and feedback!

Early back in 2009, we did some MCLE presentations with Frank Chen, one of the super lawyers.

Anyway, while he wrote an article a while ago for ADA compliance, here it is, quoted in part, below.

By Attorney Frank W. Chen INTRODUCTION In recent years, there have been a multitude of ADA accessibility lawsuits filed against businesses for alleged violations of the Americans With Disabilities Act of 1990, and corresponding California law consisting of the Unruh Civil Rights Act (Civil Code ? 51 et seq.), the Disabled Persons Act (Civil Code ? 54 et seq.), and the building standards set forth in Title 24 of the California Code of Regulations. Typically, the alleged violations involve lack of handicapped parking and inaccessible restrooms at businesses such as restaurants, motels, retail stores, and office buildings. Under California law, violators of these standards may be found liable for up to three times the amount of actual damages, but not less than $4,000, plus attorney’s fees and costs, even if the violation is seemingly trivial. Conflicting access standards under California and federal laws, a lack of continuing education for building inspectors and architects, and inconsistent interpretations of state law have made compliance with disability-access standards in California difficult.

I didn’t quote all of it, but you can read the rest (including resource citations) below.

( Continue… )

By Phillip K. Cha, Esq.

While the ADA imposes legal obligations on a business regarding providing access to the disabled public (usually its customers or clients), it also creates obligations between a business and its disabled employees. While these obligations are addressed in separate sections of the ADA (Title I addresses private employers, whereas Title III addresses public accommodations) and involve different legal issues, there are some significant areas of overlap that should not be ignored. Importantly, the ADA may require that a business take additional steps above and beyond removing access barriers for the public to ensure that its employees also are provided equal access to facilities.

To illustrate, under Title I, an employer is required to provide “reasonable accommodations” to qualified individuals with a disability. The ADA regulations identify various types of reasonable accommodations, including retrofitting, to allow disabled employees to enjoy the same benefits and privileges as those enjoyed by non-disabled employees. Specific examples of reasonable accommodations, much like those that may be required under Title III, include installing wheelchair ramps and proper signage. This requirement applies to both work-related and non-work facilities provided or maintained by the employer for use by employees, including break rooms, restrooms, lunch rooms and training rooms, which might not otherwise be open to the general public.

In light of the interplay between Titles I and III, any ADA compliance plan should account for the company’s obligations as a provider of public accommodations, as well as an employer. Failure to wear both hats in going through this process may expose a business to substantial liability under the ADA and State law.

Phillip K. Cha is a labor and employment law attorney with Swerdlow Florence Sanchez Swerdlow & Wimmer in Beverly Hills, California. If you have any questions about the ADA as it applies to employers, feel free to give Phillip a call at (310) 288-3980 or e-mail him at pcha@swerdlowlaw.com.