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Lawsuits: Access Denied
by Janis Mara
A single round doorknob in a leasing office or first-floor commercial establishment could be enough to get a landlord sued under the Americans with Disabilities Act. Thankfully, a new state law provides a mechanism to reduce the risk of such lawsuits.
Landlords with ground-floor businesses or leasing offices open to the public are vulnerable to lawsuits under the federal ADA and state laws such as the Unruh Civil Rights Act. This is partly because many landlords do not even realize their premises are not accessible to people with disabilities and hence have not fixed them. Senate Bill 1608, authored by Senator Ellen Corbett (D-San Leandro), aims to improve the situation.
Under the legislation, a state-approved inspector known as a “CASp,” or Certified Access Specialist, vets a public area for any failures to comply with disabled access laws. The next step is to correct any problems, get the CASp to certify the facility and then post a sign saying that the venue meets the standards for disabled access. The hope is to lessen the possibility of a lawsuit. If the landlord should be sued anyway, he or she can get the proceedings put on hold and have an early conference with the judge and the accuser, thanks to having had a CASp inspection. The entire process is voluntary.
“Inspection costs will generally run somewhere between $1,500 and $4,000 for a small business, depending on the size of the facility,” relayed CASp inspector Bassam Altwal, vice president of architecture for Concord-based Designers Collective. “If something needs fixing, it could be as simple as moving a table.” If corrective work is needed, the entire process—inspection, permit and work—might range from $2,000 to $20,000 for a small business, depending on the situation, Altwal added. That may seem like a lot, but if the law works the way it is intended to, it could be a boon to apartment owners, since lawsuits can cost an unlucky landlord hundreds of thousands of dollars.
Tax credits may also be available to offset the cost of an inspection and correction. “Under Section 44 of the federal tax code, you could get a tax credit for making eligible access expenditures,” Altwal said. It is important to check with a tax advisor first, but it may be possible under certain conditions to obtain a tax credit of up to 50% for such expenditures. The maximum credit is $5,000 a year.
Only certain apartment owners are affected by SB 1608, experts claim. “[ADA compliance] is a widespread problem for commercial establishments on the ground floor under a dozen or so apartments,” according to Thomas Frankovich of the Thomas Frankovich Group, a Bay Area law firm that represents disabled clients in 100 to 400 disability access cases yearly. Any buildings that went up after 1990 will most likely be in compliance with disability laws, Frankovich said, because of building codes that were implemented in that year. (Frankovich is in a good position to know about ADA lawsuits. In 2005, the attorney was ordered by the Central District of California to file no more ADA-based lawsuits without obtaining court permission, according to the California State Bar Association website.
Local property manager Raymond Scarabosio echoed Frankovich’s comments about older buildings. “To some extent, ADA lawsuits have been a problem for the landlord community—those who have older buildings with commercial tenants. A lot of these buildings were built at a date and time when access requirements weren’t written into the building code. So you have old buildings that are not going to be compliant,” explained Scarabosio, who holds a Master Property Manager certification and is senior property manager for San Francisco’s Jackson Group, which manages more than 450 units.
Scarabosio believes SB 1608 is a good idea. Because there are no building inspectors who check structures regularly for disabled access issues, a landlord could have a violation and not know about it, he said. “If we have knowledge of a problem, we will take care of it,” he emphasized.
Balancing the Legal Scales
Apartment owners are not the only targets of such lawsuits. A tsunami of ADA and disability-related suits has washed over California, grabbing headlines and causing financial burdens for many small businesses. The nearly 20-year-old ADA has been of great benefit to people with disabilities who want to do things as simple as buying a pack of gum unencumbered by barriers. But observers say a few California plaintiffs with disabilities, some of whom have filed more than 400 lawsuits, have sought to use state laws incorporating the ADA such as the Unruh Act and the Disabled Persons Act for personal gain. “The ADA is a good thing, but a small number of people are just looking for opportunities to file lawsuits, rather than addressing real issues,” posited David Walls, executive director of the California Building Standards Commission.
There are solid numbers to back up this theory. In 2006, San Diego-based Lawyers Against Lawsuit Abuse did a LexisNexis public records search and counted more than 14,000 ADA lawsuits filed between 1992 and 2006 in California. “Many apartment owners have been sued,” specified David Warren Peters, an attorney with Lawyers Against Lawsuit Abuse, who was consulted in the crafting of the CASp bill.
A number of bills were introduced in California to address the problem before SB 1608 but they failed to pass, in part because of a lack of support from the disabled community. “The disabled community did not approve of those bills, and ultimately they were not passed. But most of the disabled community realized we needed to come to a compromise with the business community. [SB 1608] came out of that,” explained Fred Nisen, a staff attorney with Disability Rights California, a group that provides advocacy help for Californians with disabilities.
SB 1608 passed in 2008, and many of its provisions went into effect January 1, 2009.“This is a bipartisan bill in which the disabled community was involved. It wasn’t exactly the best thing we would like, but it is a compromise both sides can live with,” Nisen added.
The law has several elements. It mandates that architects complete coursework focused on disability access requirements in order to get their licenses renewed. It also establishes the California Commission on Disability Access, which will do studies and make reports to the Legislature. The commission will have 17 members, 16 of whom have been appointed so far, according to the Building Standards Commission.
The centerpiece of the bill is the CASp inspections. The goal is to reduce the risk of lawsuits by getting inspected, fixing any problems and posting a sign visible to patrons that the building meets access standards. Should a suit be filed, the proceedings can be put on hold while an early conference takes place with the judge. Also, after a suit is filed, the target of the lawsuit must be given written notice with any demand for money or complaint for any construction-related accessibility claim.
It is not unusual for such suits to result in judgments in the $40,000 range or higher for attorneys’ fees alone, according to Clifford Fried, a partner with San Francisco real-estate industry law firm Wiegel & Fried. As far as the cost of fixing an access violation, Fried said, “It’s a minor repair in a lot of these cases.”
Questionable Effects
Though in theory SB 1608 should discourage lawsuits by eliminating access complaints, Fried questions whether the law will have much of an effect. “I don’t think 1608 prevents the lawsuit from being filed, and it’s not a safe harbor for property owners. There’s no precondition a person with a disability has to meet before they can file a lawsuit for a disability access violation,” he noted.
“I am somewhat sympathetic to this,” admitted SB1608 consultant Peters. “What people have struggled with is that you’re really going to run into opposition if you start crafting provisions that are going to prevent lawsuits from being filed. You’re not going to get bipartisan support.”
Fried is also concerned because while the bill offers an early conference component, “again, it’s not mandatory that the case settle. The plaintiff can still move forward with the lawsuit.”
“I think what the judges and the people who designed the program want—instead of having it be nine months down the road and on the eve of trial before settlement offers are exchanged—there is a chance for it to happen earlier,” Peters responded.
Another potential problem with the law is that there are very few CASps in the state, especially given the number of ADA-related lawsuits. Frankovich estimates that there are less than a dozen inspectors in California, while CASp Altwal guesses there are around 30 available for hire by private individuals. In fact, there are more than 100 names listed on the CASp page of the Division of the State Architect, but many are public employees and not available for private hire. “There’s not a lot of CASps available now, but [state officials] are doing testing to certify new ones, so hopefully there will be more soon,” offered Kyla Christoffersen, a policy advocate at the California Chamber of Commerce.
Peters believes interest in SB 1608 is growing and the legislation he helped write is proving effective. “People who are not in lawsuits and have heard about 1608 are calling us for advice on how to get inspected, and that’s what we wanted. I’m now having situations where I’m dealing with people who got inspected before being sued. It’s working,” he relayed, adding that he is not seeing “these outrageous $50,000, $100,000 claims” in lawsuits since SB1608 passed.
Businesses are taking note, according to a technician who helps establishments become accessible. “The number of calls we get on ADA compliance from businesses remains steady, but now a third of the calls concern some component of SB 1608,” said Don Risdall, a technical assistance specialist at the DBTAC- Pacific ADA Center, one of ten regional centers that helps businesses comply with the ADA.
Altwal encourages apartment owners to visit the state architect website (www.dsa.dgs.ca.gov), find a CASp inspector and get the process going. “You are protecting yourself from being sued,” Altwal argued. “I think of CASp as an insurance policy.”
The opinions expressed in this article are those of the author, and do not necessarily reflect the viewpoint of the SFAA or the SF Apartment Magazine. Janis Mara is a 15-year Bay Area journalist focusing on real estate, transportation and business who has worked at the Los Angeles Times, The Oakland Tribune and Adweek. She can be reached at janismara@hotmail.com. Copyright © 2009 by Black Point Press. All rights reserved.