ADA complaints in San Francisco cause legal headaches for businesses 

click to enlarge Businesses in San Francisco have been targeted by lawsuits claiming violations of the Americans with Disabilities Act. Complaints include a lack of accessibility, including concrete lips in merchants’ entryways. - MIKE KOOZMIN/THE S.F. EXAMINER
  • mike koozmin/the s.f. examiner
  • Businesses in San Francisco have been targeted by lawsuits claiming violations of the Americans with Disabilities Act. Complaints include a lack of accessibility, including concrete lips in merchants’ entryways.

When one of John Howett’s tenants was sued for ADA violations because of a concrete lip that prevented some customers from entering the Grant Avenue business early last month, he sprang into action.

Howett hired a lawyer and ordered a portable ramp the business could set up or remove for wheelchair-using patrons entering and exiting the nail salon.

Howett said neither he nor his tenants want to deter people with disabilities from entering the business.
He said some lawsuit filers “pick on the immigrant minority businesses who don’t know any better. ... Fortunately the same day [the business] was served, they served us. We assured the tenants we’re taking responsibility for this.”

The Americans With Disabilities Act lawsuit alleges a male client who uses a wheelchair was looking to get a manicure and could not enter the salon because of a concrete lip at the entrance. It was filed by a San Diego-based firm April 2.

Howett is the first Grant Avenue business hit by such a lawsuit. Soon after Howett’s tenant was served, six others along Grant were given similar notices of violation with intent to sue, according to the North Beach Merchants Association.

Merchants along Clement Street and Geary Boulevard, and in Noe Valley, also have been hit with similar lawsuits in recent years. The actions shut down dozens of small businesses. Others remained noncompliant, but still generated thousands of dollars in settlements for the lawsuit filers.

The issue, and number of lawsuits or complaints, has become so alarming that U.S. Sen. Dianne Feinstein, D-Calif., sent a letter in March to state Senate President Pro Tem Darrell Steinberg asking that he and the Legislature do something to help targeted businesses.

Steinberg responded by saying California passed a bill in 2008 to protect businesses already in compliance and those in the process of becoming compliant. Steinberg also is introducing legislation aimed at requiring commercial property owners to inform lessees about whether the property has been certified by an access specialist and mandating a review of state and federal requirements for ADA access, many of which are presently conflicting.

Historic structures in San Francisco also pose a problem for businesses because ADA requirements are at odds with preservation requirements.

Board of Supervisors President David Chiu has introduced legislation that would require landlords to make ground-floor entrances and exits compliant with ADA regulations, and mandate that landlords inform tenants of compliance obligations. It also would give priority to permit applications for ADA-compliance projects.

Shell Thomas, co-president of the North Beach Merchants Association, said each piece of legislation at the state and local level helps a little bit, but most of it is temporary relief.

Eighty percent of businesses are not compliant, Thomas said. “We need something that will give them time and the ability to fund these upgrades.”

Regina Dick-Endrizzi, director of The City’s Office of Small Business, said it’s all about education. One way businesses can prevent lawsuits from being threatened or filed is by hiring a certified access specialist to note what is achievable under the law before a business is sued.

Bassam Altwal, an access inspector with CalAccessibilty, said many violations are easy to fix.
“Putting a garbage can between the toilet and a stall door means someone with a wheel chair cannot hoist themselves up easily,” he said. “Moving the garbage can is an easy fix. A lot of it is silly.”

Altwal noted that large fixes to counter heights or removing a step that could cost small businesses large sums should be able to be done over time.

Even though Howett made an effort to become compliant, it’s no guarantee he won’t face lawsuits in the future.
But Howett said his tenant of eight years has at least one customer who uses a wheelchair, and the business owners help the customer by lifting the wheelchair over the concrete lip.

“It’s been a nonissue until now,” he said.

Avoiding costly problems

How businesses can reduce their risk of being sued for ADA violations

  • Do not ignore the letters of complaint, respond to them
  • Hire an attorney
  • Hire a certified access specialist to review violations
  • Set up a time frame of when projects should be completed and identify what is readily achievable
  • Remove identified barriers over a period of time
  • Use tax credits and deductions to get the work done

Source: S.F. Small Business Commission

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