ADA Access Consulting Blog

NEVER UNDERESTIMATE A PERSON WITH A DISABILITY

2014-04-07T14:12:00.001-07:00

Itzhak Perlman Airport Incident Prompts Apology, Donation

Friday, April 04, 2014 - 02:00 PM

By Brian Wise

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Itzhak Perlman, violinist (Getty Images Sport/Al Bello)

Days after an airline worker abandoned Itzhak Perlman with his violin, crutches and luggage at Pearson International Airport in Toronto, Air Canada has offered an apology and a donation to the disabled violinist’s charity.

The saga began when Perlman was arriving in Toronto on Monday to play for a charity concert that night. According to the violinist, he was traveling with an Air Canada employee between his arrival gate and passport control when the staff member became argumentative and refused to assist in carrying his carry-on luggage. He then left Perlman in a corridor by a bank of elevators.
With three bags to carry, as well as his multi-million-dollar violin, the 68-year-old Perlman loaded up his mobility scooter and wheeled his way to customs authorities. Perlman suffered polio as a child and uses crutches and a scooter to get around. The incident drew dozens of messages of sympathy on Perlman's Facebook page.
Air Canada said in a statement that it has donated 500,000 Aeroplan miles to Chai Lifeline Canada, the charity Perlman was in Toronto to support. Company spokesman Marc-Andre Hotte also wrote to Perlman's assistant to say, "I would like to extend my personal apologies for the inconvenience we caused Mr. Perlman in Toronto but especially for the unacceptable service we extend him with."

Chai Lifeline, which offers support services to families of children stricken with serious illness, said in a statement, “the miles donated to the organization will no doubt do a great deal of good for ill children and their families in Toronto and the GTA."
The violinist returned to New York early Tuesday morning, with no reported travel difficulties.

WHY DO YOU NEED A CASp INSPECTION?

2014-04-03T22:12:00.004-07:00

Over the past three years, there have been more lawsuits filed in federal court for the Eastern District of California than in the Northern, Central and Southern District combined. This is in large part due to several professional plaintiffs who seek out violations to profit by a business’s failure to comply with the Americans with Disabilities Act. The ADA became law in 1990 when President George H.W. Bush signed the legislation that prohibits discrimination on the basis of disability in employment, state and local government services, public accommodations, commercial facilities and several other settings. Any business that has a physical location that is visited by the public, is deemed to be a public accommodation and falls within the long reach of the ADA’s prohibitions concerning architectural barriers.

In California, the Unruh Act prohibits discrimination on the basis of disability and a breach of this Act is a civil rights violation. One consequence of this is that as a civil rights violation, there is no "grandfathering." Secondly, a violation creates a private cause of action with a minimum $4,000 penalty per violation. It is this penalty that appears to be the driving force behind the many lawsuits that have been filed.

In 2008, the California legislature passed SB1608 that was written to reduce spurious litigation and increase accessibility by creating a class of licensed professionals qualified to identify violations and provide a certification that a business is incompliance. The Certified Access Specialist was born (CASp).

In 2012, SB1186 was enacted. One of its provisions reduced the $4,000 penalty to $1,000, if a business owner can demonstrate that it relied upon a CASp inspection that stated that the business was in compliance or that it fixed any violation within 60 days of being served with a summons and complaint.

The ADA does not require 100% immediate compliance with the law. It only requires that a business implement readily achievable reductions in architectural barriers. If a business owner receives a CASp inspection and reports and establishes a schedule to make corrections over a reasonable period of time given the expense involved, the business has complied with the law and has a good faith defense to the lawsuits that are swarming through the courts.

ADA Access Consulting, LLC is a licensed CASp inspection service that can help reduce the risk of lawsuits for violations of the ADA. Its inspector is a licensed California General Contractor. While our company does not contract to correct any defects identified, because of our inspector's status as both a CASp and a B-1 contractor, we're in a position to assist a business to create a reasonable time-line to meet the readily achievable standards of the law.

Blind Man, Service Dog Kicked Off NY-Bound Plane

2013-11-15T13:18:00.002-08:00

It seems that the people one would least expect are guilty of ignorance regarding the Americans with Disabilities Act (ADA). It is a Federal Law that must be complied with nationwide.

It would be interesting to follow this story to see how it plays out:

A blind Long Island man and his service dog were forced off a flight from Philadelphia after the airline says the dog left its seat and wandered the aisle as the plane was delayed.

Albert Rizzi, who is from Bellport, says he boarded the US Airways flight with his dog, Doxology, at about 8 p.m. Wednesday.

After the flight was delayed for more than an hour on the tarmac, Rizzi says the passenger next to him volunteered her space so that Doxy could spread out.

The airline, which says service dogs must be kept at a passenger's feet, says the dog became restless and began walking the aisle. Rizzi disputes this.

According to the airline, Rizzi became verbally abusive when a flight attendant told him he needed to control his guide dog.

"He became disruptive," said US Airways spokesman Todd Lehmacher.

The pilots turned the plane back to the gate and Rizzi and his dog were escorted off.

US Airways says the flight was then canceled, and some passengers were put on a bus to Long Island.

Two passengers told NBC 4 New York they didn't think Rizzi was out of line.

"From what I could see, he did nothing whatsoever wrong," said Vern Hackworth.

The airline said the situation is being reviewed.

Click this link to see the NBC video:

http://www.nbcnewyork.com/news/local/Blind-Man-Service-Dog-Flight-Long-Island-Plane-US-Airways-231901721.html

MANDATORY DISCLOSURES FOR COMMERCIAL LEASES AS OF JULY 1, 2013

2013-06-07T15:56:00.002-07:00

Mandatory Disclosures for Commercial Leases

SB 1186 expressly requires that all commercial leases executed on and after July 1, 2013, disclose whether the subject premises have been inspected by a CASp, and if so, whether the inspected premises have been determined to meet all applicable accessibility requirements. Specifically, Section 12 of SB 1186 created the new disclosure requirement by adding Section 1938 to the California Civil Code which provides as follows:

“A commercial property owner or lessor shall state on every lease form or rental agreement executed on or after July 1, 2013, whether the property being leased or rented has undergone inspection by a Certified Access Specialist (CASp), and, if so, whether the property has or has not been determined to meet all applicable construction-related accessibility standards pursuant to Section 55.53.”

Information on whether a property has undergone inspection by a CASp, and whether the property has been found to meet applicable accessibility requirements is relevant to tenants since tenants, in addition to landlords, are often named as plaintiffs in accessibility lawsuits. Accordingly, tenants have an interest in knowing whether their leased premises have been inspected and deemed compliant by a CASp to determine whether they may benefit from the protections granted under SB 1186.

It is important to remember that the new law does not require commercial property owners to have CASp inspections performed on their properties – it simply requires that they state in their leases executed on or after July 1 whether or not they have done so; and if so, whether the property meets the applicable accessibility standards. A disclosure in a commercial lease that the premises have not been CASp inspected may prompt the tenant to request that the landlord undertake such inspection, or the tenant may agree to undertake such inspection on its own (both of which are likely intended results from the legislation) in order to receive the benefits under SB 1186.

What you should do

The July 1, 2013, deadline set forth in the new Civil Code Section 1938 is rapidly approaching.Landlords of commercial property should consult with experienced real estate counsel to:

Determine whether their property has been inspected by a CASp and to evaluate the findings of such inspection;
Based on whether or not a CASp inspection has been performed, draft and incorporate appropriate provisions into their commercial leases executed on or after July 1 to comply with Civil Code Section 1938; and
Review other relevant provisions of their commercial lease form, including compliance with law and indemnity provisions, to ensure the lease appropriately allocates accessibility related risk between Landlord and Tenant.

Consult your attorney or visit this page: http://www.attorneyrobertharris.com

New Accessibility Disclosure Requirements for Commercial Landlords in 2013

2013-03-25T22:57:00.005-07:00

3/12/2013

The California legislature and the San Francisco Board of Supervisors recently enacted separate laws imposing on landlords disclosure requirements relating to accessibility on commercial properties. In addition, the San Francisco ordinance requires revisions to leases and lease amendments for smaller commercial premises.

California Civil Code Section 1938

At the state level, new Civil Code Section 1938 requires that leases for all commercial properties entered into on or after July 1, 2013, disclose whether the property has been inspected by a Certified Access Specialist (CASp) and if so, whether the property has or has not been determined pursuant to a report prepared in compliance with Civil Code Section 55.53 to meet all applicable construction-related access standards.

Note that this requirement applies to ALL commercial properties and leases in California, not only places of “Public Accommodation” as defined in the Federal Americans with Disabilities Act (ADA) and the inspection must be made by a CASp and not just any third party inspector.

As with the ADA, this is a “civil rights” statute and is primarily enforced by private parties, in this case the tenant, in a civil suit. A tenant could claim that but for the landlord’s failure to make the requisite disclosure, the tenant would not have suffered the damage of itself being liable to a customer or employee claiming violation of the ADA. The landlord’s violation of the law could also be asserted by the tenant to deny a claim by the landlord for accessibility alterations, if under the terms of the particular lease, such are otherwise required to be performed by the tenant.

San Francisco Administrative Code Chapter 38

This new ordinance (Section 38.1 et. seq.) is intended to protect small businesses and imposes obligations on commercial property owners related to disability access on the ground floor and to public restroom facilities and related disclosures. Any new commercial lease or any amendment of an existing lease for a space of 7,500 square feet or less that is used as a “Public Accommodation” (as defined in the ADA ) is subject to these requirements. If the ordinance applies, as a general disclosure obligation and before entering into or amending a commercial lease, the landlord must give the existing or prospective tenant: (i) a written Disability Access Obligations Notice that must be signed by both the landlord and tenant, and (ii) a copy of the Small Business Commission’s Access Information Notice pamphlet in the tenant’s requested language.

In addition, before entering into the new lease (or amendment) the landlord must either (i) make necessary alterations to the premises to ensure that existing public restrooms, ground floor entrances and exits and path of travel are accessible by removing all architectural barriers to disability access to the extent that such improvements are required by and “readily achievable, i.e., easily accomplishable and able to be carried out without much difficulty or expense” (as defined in the ADA and related regulations) , or (ii) include in the Disability Access Obligations Notice prescribed language disclosing that the property may not meet all applicable construction-related accessibility standards.

Finally, the lease or amendment must include a provision specifying whether the landlord or tenant is responsible for making and paying for any disability access alterations and a requirement that each of the landlord and tenant will use reasonable efforts to notify the other if either makes alterations to the premises which might impact accessibility as required under either state or federal law.

Note that:

Public Accommodation is defined broadly in the ADA to include any business open to the public, including retail, health care, professional office, lodging, entertainment venues, social service agencies, schools, gymnasiums, museums and recreation facilities; and
As with Civil Code Section 1938, the ordinance does not include any provision regarding penalties for non-compliance, so will be primarily enforced by civil suits brought by tenants claiming violation.

This new ordinance was effective January 1, 2013 with respect to leases (and amendments) for spaces 5,001-7,500 square feet and on June 1, 2013 will also apply to leases (and amendments) spaces of less than 5,000 square feet.

CALIFORNIA GOVERNOR JERRY BROWN SIGNS ADA LAWSUIT ABUSE MEASURE INTO LAW

2012-12-05T12:00:00.001-08:00

October 2012
California Governor Jerry Brown has signed into law Senate Bill 1186 geared to prevent the ever growing frivolous lawsuits of American with Disabilities Act (ADA) violations.

Nearly 40 percent of ADA lawsuits are filed in the state of California. There is a serious problem in the state where attorneys are filling shakedown lawsuits negotiating monetary settlement with no intention of improving access for persons with disabilities.

A San Diego based attorney, who filed ~500 such lawsuits over a three year period was recently disbarred as many of the suits included a plaintiff whom was not even aware the suits had been filed.

A key provision of the legislation bans "demand for money" letters. Letters can still be sent to a business alerting them of a potential violation or infraction, but that letter can't include a "demand for money". Attorneys will also be required to send any letter regarding ADA issues to the California State Bar.

The law also prevents stacking of multiple claims, a common practice to increase monetary damages, and requires the plaintiff to explain the need for multiple visits to the same business with a known uncorrected barrier to access.

As the bill includes an urgency clause and was passed by the Senate on a 34-3 vote and 77-0 in the Assembly the law will go into effect immediately.

ADA REQUIREMENTS AND YOUR SMALL BUSINESS

2012-11-09T11:19:00.000-08:00

Making your business accessible is not a one-time endeavor, it is an ongoing responsibility. Various state and federal disability access laws apply to small business in California. Non-compliance can result in significant expense from defending and settling "drive-by" lawsuits.

IMPORTANT REMINDERS FOR SMALL BUSINESSES

Even if you are not engaged in construction or renovation, you are subject to federal and state disability rights laws. Compliance with building code requirements does not relieve you of the obligation to comply with civil rights laws, and vice versa.
The Department of Building Inspection (DBI) only reviews the California disability access code requirements triggered by the renovation work. When DBI signs off on a building permit or certificate of occupancy, DBI does not conduct a general review of the premises to identify disability access code violations.
The primary responsibility for compliance with building codes lies with your architect and contractor. Even if DBI approves the building permit or certificate of occupancy, it may miss a relevant disability access code violation. If so, you, not the City, will be responsible for the access violation.

How to Reduce Your Risk of Being Sued

1. Hire a Certified Access Specialist (CASp). A CASp will survey your premises to identify barriers to access. If you are sued, the CASp inspection report makes you eligible to request a 90-day stay of the lawsuit and an Early Evaluation Conference. Without a report, you cannot benefit from this valuable opportunity.

2. Review the report provided by your CASp. The report either certifies that you have complied with state and federal disability access laws, or explains the steps necessary to achieve full compliance. The report will also provide a recommended timeline for removal of all "readily achievable" barriers to access.

3. Remove barriers over time, according to the CASp report's timeline, and as you can afford to do so.

4. Use tax credits and deductions to help reduce (or eliminate) the costs of barrier removal.

If you do receive a verbal or written complaint, follow up immediately. Delay may lead to litigation. For this reason:

DO NOT ignore the letter or other complaint sent to you by a person with a disability. Letters may be precursors to a lawsuit or complaint filed with DBI.
DO respond to the letter or other complaint. You may respond by simply letter the complainant know that you take his or her concerns seriously and will consult with a professional, such as a CASp inspector and/or legal counsel.
DO consult with a CASp inspector if you have not done so already.
DO immediately call an experienced attorney if you are sued.

How Do I Pay for Access Improvements?

Tax Benefits: Tax incentives are available to help absorb costs. You may be able to take as much as $5,000 in tax credits and $15,000 in deductions per year over several years for making accessibility improvements.

Loans: Opportunity Fund – Some “micro-lenders” have a program to offer loans from $1000 to $50,000 to assist you with the cost of a CASp inspection and report, access improvements, and legal assistance.

Measure to Increase Disabled Access, Curb ADA Abuses Sent to Governor

2012-11-08T18:34:00.001-08:00

September 1, 2012
(Sacramento) – Democrats and Republicans have joined together to support legislation to end unfair legal practices that prey on California businesses while also encouraging businesses to correct violations and provide full and equal access for those who are disabled.
SB 1186 (Steinberg/Dutton), now heading to the Governor’s desk for signature, bans the abusive practice by some attorneys of issuing “demand for money” letters to businesses that allegedly have construction-related barriers to access in violation of state and federal disabled access laws. The measure also significantly reduces damages against business owners who correct alleged violations within 30 to 60 days of receiving a complaint. The Senate passed the bill with strong bipartisan support, 34 - 3. As an urgency measure, it will take effect immediately upon signature of the Governor.
“Championing civil rights for the disabled is what first motivated me to get into public service. The Unruh Civil Rights Act is one of the great laws of this diverse state, and including ADA violations within the protections of the Unruh Act was the right thing to do in 1992. At the same time, it’s just plain wrong that some attorneys abuse the law by filing paper against businesses all over the state, making multiple claims for the same violation to pressure a quick settlement, and demanding money with the threat of a lawsuit over minor violations of disabled access laws,” said Steinberg. “SB 1186 is a compromise that applies a common sense approach to resolve difficult issues. In the end, this will give some relief to entrepreneurs who show good faith in trying to follow the law and are willing to correct the violation. Ultimately this measure promotes compliance and brings greater access to the disabled community.”
In addition to banning “demand for money” letters, which often result in a swift out-of court settlement without the actual correction of a violation, the bill requires more specific details in any complaint alleging barriers to disabled access. It also prevents “stacking” of multiple claims to increase monetary damages, requiring a plaintiff to explain the need for multiple visits to the same business with a known uncorrected barrier to access. In one known instance, a person asserted 30 violations at the same business within less than 30 days. Such threats for high damages often intimidate property owners who feel pressured to quickly settle the claim for lesser damages.
The legislation also makes it a priority for the California Commission on Disability Access to develop and disseminate educational materials and information to promote and facilitate compliance with the law. In addition, it provides for more certified access specialists in local building departments to ensure new construction and improvement projects don’t get approved unless they comply with disability access requirements.
Lastly, there are provisions designed to avoid confusion and unnecessary litigation with the upcoming publication and adoption of the 2013 California Building Standards Code. Once the code is published, it doesn’t become effective for 180 days. The bill provides that upon the publication date of the new 2013 code yet before its effective date, the property owner may choose to comply with the 2013 Building Code provisions regarding construction-related accessibility standards in any Unruh damages claim.

2012-11-08T18:26:00.001-08:00

AMERICANS WITH DISABILITIES ACT OF 1990, AS AMENDED

Following is the current text of the Americans with Disabilities Act of 1990 [ADA], including changes made by the ADA Amendments Act of 2008 (P.L. 110-325), which became effective on January 1, 2009. The ADA was originally enacted in public law format and later rearranged and published in the United States Code.

The United States Code is divided into titles and chapters that classify laws according to their subject matter. Titles I, II, III, and V of the original law are codified in Title 42, chapter 126, of the United States Code beginning at section 12101. Title IV of the original law is codified in Title 47, chapter 5, of the United States Code. Since this codification resulted in changes in the numbering system, the Table of Contents provides the section numbers of the ADA as originally enacted in brackets after the codified section numbers and headings.

Three versions of the Americans with Disabilities Act of 1990, as amended are provided below. The first is the text with the amendments incorporated. The second version shows the text with the amendments highlighted by strike through text for deletions and bold text for additions. The third version shows the same highlighted content with additional coding for people who use screen readers.

Current text of the Americans with Disabilities Act of 1990 incorporating the changes made by the ADA Amendments Act of 2008. (HTML) | (PDF)
Text showing the changes to the Americans with Disabilities Act of 1990 made by the ADA Amendments Act of 2008 with deleted language shown as strike through font and new language shown in bold font. (HTML)
Text showing the changes to the Americans with Disabilities Act of 1990 made by the ADA Amendments Act of 2008 with deleted language shown as strike through font and new language shown in bold font with coding for access by people who use screen readers. (HTML)

Text of the Americans with Disabilities Act of 1990, before changes made by the ADA Amendments Act of 2008 (HTML) [archive].