San Francisco businesses learn about accessibility to forestall ADA lawsuits

From the San Francisco Chronicle:

San Francisco merchants, concerned about being sued for failing to provide access to disabled customers, met Jan. 4 with city officials who soon will embark on a campaign to educate business owners about accessibility requirements and help forestall lawsuits that might put them out of business.

Since November, several Noe Valley shop owners have received letters from people with disabilities suggesting that their stores may be violating state laws or federal access standards under the Americans with Disabilities Act. Those notices coincided with a rash of civil rights lawsuits in the Richmond District in late November that led some businesses to close. That followed similar suits in the Mission District in the fall. Letters commonly precede such legal action.

Among those contacted was Bill Hoover (pictured), who has owned Gallery of Jewels on 24th Street for 21 years.

"My shop has a 4-inch step and it's only about 250 square feet total, so I can't satisfy any of the requirements," Hoover said. "If I had to meet the code, I wouldn't have room for any inventory."

By the end of the month, the city's small-business office plans to work in tandem with several district supervisors to disseminate information on disability access requirements and opportunities for a certificate of compliance, tax credits for structural changes and low-interest loan opportunities. They hope to clarify state and federal disability access laws, which are a tangled thicket of intersecting and sometimes duplicative claims and damages.

The city also hopes to include notices about access rules in new businesses registration materials and in annual payroll tax information sent to existing businesses. Another idea floated would be to require that landlords disclose ADA and state access compliance information to new tenants.

Regina Dick-Endrizzi, executive director of the city's small-business office, said that during the past two years, the city has seen a spike in ADA lawsuits against small-business owners. She said the city wants the merchants to comply with the law, but also is aware that there are some plaintiffs who are more interested in money than they are in improving conditions for disabled people.

Federal and state laws related to disability access are enforced through civil lawsuits. When a person with a disability believes he has experienced unequal access to goods or services, he has the right to sue.

The federal claims can be combined with the California's Unruh Civil Rights Act, under which a plaintiff may demand $4,000 per impediment. Federal law also allows for attorneys' fees.

Federal law only imposes access changes that are "readily achievable," generally meaning that they are structurally possible or would not put a shopkeeper out of business. But the definition is vague and often requires a judge or jury to define.

Dick-Endrizzi said that once they are sued, many small mom-and-pop business owners settle cases with plaintiffs because they may have language barriers or do not have the money to hire a lawyer to explain their legal rights and defend them. Meanwhile, by making very minor changes, many merchants could comply with the law and attract more disabled customers.

"We have seen hundreds of instances with similar characteristics," Dick-Endrizzi said. "Small businesses like pizza places and video stores, where there's not a lot of profit being made ... they don't have the financial capacity to hire architects and lawyers."

The recent clashes between shopkeepers and disabled customers is the latest chapter of a decadeslong struggle.

Merchants and disability access groups have worked together to try to inform shop owners about how to comply with the law. Several years ago, city small businesses were even offered free consulting from experts on disability access specific to their stores.

But most observers agree that those efforts have made little difference. Business owners believed they already had complied with the law or decided to risk being sued rather than paying for necessary disability upgrades, observers say.

Dick-Endrizzi and others note that most of the prior outreach efforts preceded 2008 state legislation that created a certificate program providing experts who can help business owners determine if their shops are compliant with the ADA and state laws.

The experts, called Certified Access Specialists, often are architects or contractors who provide inspection reports that detail whether a building is in compliance with access standards or whether corrections are needed. The inspection reports are confidential, but merchants are given a window sign showing that they have undergone an inspection, which they can choose whether to display.

If a business owner is sued in state court, the fact that he or she previously had a certified inspection means the court must stay the legal action for 90 days and require the plaintiff to meet with the owner and review the report.

"The program was intended to provide notice to potential plaintiffs that an inspection had been done," said Walnut Creek attorney Jason Gong, who defends businesses in ADA suits. "But if they are sued, it also is meant to create an opportunity for a compromise."

While city officials strongly encourage business owners to obtain an inspection report, it's difficult to gauge how many will. A common refrain among shopkeepers who have been sued is that they believed they complied with all laws when they obtained city permits to initially open. Others merchants wrongly believe that their landlord is responsible for handling access issues.

Herb Levine, executive director of the disability access advocacy group Independent Living Resource Center in San Francisco, was directly involved in previous business outreach endeavors and favors any effort to encourage merchants to comply with the law.

But Levine believes that a single campaign will not do the trick. He said that the city should start by looking at every department that interacts with small businesses and determine how they can help ensure compliance.

"This is not an event. This is an ongoing process and businesses come and go," Levine said. "It needs to be dealt with as a community issue."