Various state and federal disability access laws apply to small businesses in California. Non-compliance can result in significant expense from defending lawsuits.
Disability access rights laws
Small business owners have two basic obligations under disability access laws:
1) remove existing architectural barriers to the premises; and
2) comply with building code requirements when doing any construction work.
Building inspectors do not conduct a full review of your business location for disability access deficiencies; they only check to see if the renovations covered by your building permit meet the level of accessibility triggered under the building code for that specific project. Smaller projects are allowed an exception under the 20% rule and may not result in a fully accessible facility (see below for more). However, even though the California Building Code requires that businesses make accessibility improvements only when they are doing other construction or renovation, your entire business location must still comply with the ADA barrier removal requirements.
The only defense for your business not being fully accessible is if the necessary improvements are not currently readily achievable. Readily achievable means easily accomplishable and able to be carried out without much difficulty or expense. To fall under this exception, you must be able to legally prove that any improvements you did not complete were not readily achievable. Even if you do not complete all improvements, you are still required to make an effort to provide goods and services to people with disabilities.
NOTE: It can be very difficult for a business to claim either of these exemptions, and you should consult with a CASp and an attorney before relying upon either of them to protect you from a lawsuit. You have an ongoing obligation to make your business accessible. Even if changes are not readily achievable now, they may be in the future. To address this ongoing obligation, you should make a plan with a Certified Access Specialist (CASp) inspector (see below).
Title III of the Americans with Disabilities Act (ADA) is a 1990 federal civil rights law that prohibits the exclusion of people with disabilities from everyday activities. The ADA regulations require that you make access improvements to your business premises, ensuring that entrances, aisles, bathrooms, service counters, and other features are accessible to and useable by people with disabilities. You need to remove barriers only if removal is “readily achievable," which means easily accomplishable and able to be carried out without much difficulty or expense.
State building code
The California Building Code lays out specific ways to make your business accessible, but only requires that business owners make improvements whenever they are doing construction or renovation, typically under a building permit. If you renovate your building, then all of your new construction (the area of remodel) must meet the accessibility standards. In addition, you may be required to update some or all of the building’s main entrance, the primary route to the renovated area, and any bathrooms, drinking fountains, or signs serving the area of remodel accessible (path of travel and other features serving the area of remodel).
If the cost of your construction project is under the state valuation threshold, you are allowed to limit the costs of your improvements outside of the area of remodel to 20% of your construction costs. This valuation threshold changes every year.
NOTE: If your project is valued over the threshold, and you are limiting your improvements outside the area of remodel to 20% of your construction costs, you must obtain approval from the SF Department of Building Inspection to show technical infeasibility or unreasonable hardship. This may not exempt you from litigation on the basis of Federal and State disability requirements.
California civil rights laws
In addition to Title 24, California has civil rights laws – the Unruh Civil Rights Act and the California Disabled Persons Act – that protect the right of individuals with disabilities to the full use and enjoyment of all business establishments. Both laws provide that any violation of the ADA is a violation of state law. Plaintiffs often file lawsuits in state court under the Unruh or Disabled Persons Act, rather than under the ADA, because state laws allow plaintiffs to recoup three times their actual damages, and in the event that no actual damages are sustained, plaintiffs may recover statutory damages.
Senate Bill 1608 – This recent law – the Construction-Related Accessibility Standards Compliance Act (SB 1608) – helps protect you from lawsuits if you hire a specially trained expert – a Certified Access Specialist (CASp) – and follow the CASp's recommendations.
Evaluating your location for compliance
NOTE: Landlords are required to make public restrooms and ground-floor entrances/exits accessible, or give you notice if the space may not be ADA compliant.
You can hire a professional Certified Access Specialist (CASp) to evaluate your location. The CASp inspects your location and provides a report. The report either certifies that you have complied with state and federal disability access laws, or explains the steps necessary to achieve full compliance. As part of this inspection you can work with your CASp inspector to develop a timeline for removal of all readily achievable barriers to access.
If you are sued in a state court for not being accessible, having a CASp inspection report makes you eligible to request a 90-day stay of the lawsuit and an Early Evaluation Conference. You may also qualify for a 90-day stay if you have a final job card from a CASp-certified building inspector, or are a small business with 25 or fewer employees and gross receipts of less than $3.5 Million.
Consult with an attorney to determine the best strategy to protect you and your business in the event of an ADA lawsuit. Although working with an attorney can be expensive, some low-cost legal services are available to small businesses. ADA lawsuits commonly cost small businesses tens of thousands of dollars in legal fees and settlements – invest in your business by investing in access.
Lawyer referral and information service
The Bar Association of San Francisco provides a lawyer referral service to help small businesses with ADA compliance issues find pre-screened, competent, and affordable legal assistance. 30-minute consultations are available for free. Call 415-989-1616 or submit your case online.
This information is intended as informal technical guidance. It does not replace the professional advice that an architect knowledgeable about disability access requirements can provide. It is not legal advice. If you have been sued, or face significant legal issues, you should seek the advice of an attorney who is an expert on disability access laws.
Ways you can identify and address access barriers in your business.
This is a list of local Certified Access Specialists (CASp), a person that has been tested and certified by the state as an expert in disability access laws. A Certified Access Specialist (CASp) report provides a defense against lawsuits, but only if the business obtained a CASp report BEFORE being sued.
The United States Department of Justice's Civil Rights Division created this guide to help Small Businesses understand and comply with the Americans with Disabilities Act. This document also provides information on the ADA Revisions which went into effect on March 15, 2011. These revisions clarify issues that have arisen over the past 20 years, and contain new requirements, including the 2010 Standards for Accessible Design (2010 Standards).
The Americans with Disabilities Act (ADA) Certified Access Specialist (CASp) Small Business Assessment Program
The ADA CASp Small Business Assessment Program was launched in response to the City’s small businesses facing lawsuits to comply with ADA. The program will educate small businesses Citywide about ADA compliance and will provide eligible businesses in Invest in Neighborhood corridors with an ADA assessment report and plan for compliance with ADA law, and provide access to new grant funding and loan programs.
The Guide to Accessibility Compliance brochure explains disabled access laws in detail and offers advice on how to protect your business from potential lawsuits. Since every business must comply with the Americans with Disability Act, this guide helps small businesses understand and meet those requirements. This brochure also serves as the Access Information Notice required by Administrative Code Chapter 38, where landlords must provide this information to tenants at the time of lease execution or amendment for spaces 7,500 sq. ft. or less.
Presentation explaining what service animals are and how they, and their owners, must be treated in San Francisco.
Businesses can take advantage of two Federal tax incentives available to help cover costs of making access improvements for customers with disabilities. This US Department of Justice document explains.
The CCDA promotes education on accessibility laws. The information below helps explain the ADA guidelines.
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.
- 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.
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