sacramento report

By Monica Williamson

The Americans with Disabilities Act, adopted nearly two decades ago, establishes anti-discrimination and accessibility requirements for businesses of all sizes. Businesses that serve the public—including rental housing—are required by this law to modify policies and practices that discriminate against people with disabilities. Businesses are required to comply with accessible design standards when constructing or altering facilities; they must remove barriers in existing facilities where readily achievable, and they must provide auxiliary aids and services, when necessary, to ensure effective communication with hearing, vision and speech impaired individuals.

A common misconception is that no action is required by a business owner to bring a business into compliance unless the existing building is being remodeled or a new one constructed. The ADA, however, requires the removal of barriers in existing places of public accommodation where “readily achievable.” It is this provision that underlies the recent litigation surge.

Hundreds of claims have been filed by attorneys on behalf of individuals who allege that rental property owners and managers of residential rental property have violated the ADA. Lawsuits have targeted both large and small apartment complexes throughout the state. Some of the claims have been brought by former Proposition 65 bounty hunters who seem to have exhausted their pool of defendants for Proposition 65 claims. (Proposition 65 passed in 1986 and requires apartment owners and managers to post or distribute warnings to notify tenants that they may be exposed to one or more toxic chemicals.) Most of the recent ADA claims allege that owners have failed to adequately stripe parking spaces or provide signage in their parking lots, have not provided disabled van access parking, and have not provided access for disabled individuals to the leasing manager’s office and/or surrounding areas.

Enforcement
The ADA applies in all 50 states, but, not surprisingly, California has a unique twist. In California, individuals can use the federal ADA in concert with the California Unruh Civil Rights Act to force businesses to comply with access requirements for persons with disabilities. The state law authorizes individuals to bring actions for damages they have “suffered.” Minimum damages range between $1,000 and $4,000, depending upon the violation. A fixed minimum is often set by law for situations where actual damages may not be readily ascertainable. An ADA lawsuit may be brought by a disabled individual because he or she was allegedly injured by the lack of signage or presence of barriers. Like Proposition 65, however, ADA actions are often attorney driven, with attorneys recruiting plaintiffs, rather than the other way around.

Unfortunately, property owners cannot be completely sure if they are in full ADA compliance. In fact, a senior vice president of the American Association of People with Disabilities has observed, “I have not found anything that’s 100% compliant with the ADA.” Moreover, because the inherent flexibility in the “readily achievable” standard, compliance is hard to define, and it leaves room for a bounty hunter with a keen eye to swoop in for even the most minor infraction.

Enter the State Legislature
Fortunately, relief may be on the horizon. Legislation that seeks to increase public access for individuals with disabilities while reducing unwarranted litigation is making its way through the legislative process. SB 1608 (Corbett, D-San Leandro) is a comprehensive reform measure resulting from nearly two years of negotiations among interested parties. The bill responds to a significant problem: the small, but widely destructive group of plaintiffs and lawyers using disability laws and the court system to systematically extract monetary settlements from businesses rather than to improve disability access.

This bipartisan comprehensive reform measure is designed to: promote compliance with state and federal civil rights laws by providing equal access for individuals with disabilities in public accommodations; and reduce unwarranted, unnecessary litigation that does not advance disability access.

Promoting Compliance
Although SB 1608 has only recently been amended to contain the ADA language, here is how the bill is shaping up.

California Disability Access Commission: Creates an independent state commission that will advise and inform on disability access issues. It is anticipated that the commission will include legislators, representatives of the disability community, building professionals and building owners. 

Increased Education and Awareness: Establishes continuing education requirements for building inspectors and architects on disability access laws.
State-Certified Disability Access Specialists: Encourages owners of existing buildings to voluntarily use state-certified access specialists (CASps) to ensure compliance, and requires new construction and new tenant improvements affecting access to be inspected by building inspectors who are also CASps.

Court Procedure Encouraging Compliance: Establishes a court procedure available only for defendants who have demonstrated diligence in complying with disability access laws by hiring a CASp. Such defendants, if sued because of an alleged construction-related accessibility violation, may request a temporary stay to litigation and an expedited conference in which the judge and the parties must meet early to evaluate the case, including the alleged violations and whether resolution is possible.

In late April, SB 1608 cleared its first two policy committees with unanimous votes. Despite the apparent unanimity, the bill is not guaranteed. Opponents from the disabled community argue that the business community has known about the ADA for nearly two decades and nothing should be done to provide any relief. Supporters argue that the current effort strikes a balance that fundamentally promotes full access, which is, after all, what the ADA is all about.

---

The opinions expressed in this article are those of the author and do not necessarily reflect the viewpoint of SFAA or SF Apartment Magazine. Monica Williamson is CAA’s vice president of public affairs. Copyright © 2008 SF Apartment Magazine. All rights reserved.