tv [untitled] August 2, 2012 12:00pm-12:30pm PDT
for what the scope of damages are. what it used to be prior to 160 a is civil code 55.51. prior to 1608, a lawyer could stack a case as follows. they have their client go to a public accommodation, they locate 10 barriers, and they claim damages for each barrier encountered on one occasion. multiplied by two or three different businesses identify the same problem and you have a significant problem. 1608 said it cannot do that. instead, no matter how barriers you encounter is per occasion or per visit. if you were to encounter a barrier, you suffer discrimination because it did not get full and equal access. you find five barriers. it can only claim per visit. -- you can only claim per visit or occasion.
this is worth pointing out. if your business establishments such as a mall, you have different businesses that make up one shopping center. that is treated differently than going back to one business multiple times. you could in theory, go to one business or two or three businesses in a mall and claim different violations per business visit. that is a little different there. 1608 established certified access specialists treated in the right to spend too much time talking about what that is because we have someone in the audience who can speak more to it. what role does a certified access have in excess litigation? is certified access specialist under 1608 is empowered to inspect a business and identify barriers. that is the main thrust of the
law is to get ahead of the litigation by first voluntarily going in, hiring a qualified professional, survey my place, and tell me what my problems are, and tell me how to fix them. 1608 provides a business owner or landlord who hires a certified access specialists to have that inspection and to have airport and who then starts taking steps to remove those barriers, if they are sued for access violations after that, subsequent to that, they can seek a remedy to contain the litigation. the one that comes to mind is a nady de -- in 98 litigation. if you had-if you are hit with based -- if you're hit with a lawsuit, you can go to court and seek a 90 day automatic stay and the case phrases. it is designed to continue damages and contain attorneys' fees so the parties can discuss
an early resolution or settlement. the problem with that is it is a state law. so the plant of's lawyers i come up against in litigation said, we will not file the state court, we will file in federal court. a lot of cases i see now are in the northern district of california at san francisco. they file their cases in federal court and i suspect, i never heard of them admit this but i suspect they do that to defeat that provision. when you're in federal court, you do apply state laws sometimes but if state law conflicts with the federal law, in case -- in this case, the ada, a person can move for. there is no such hold requirement in federal court. this is an untested area. when you reach a conflict, the general rule is the federal law
will preempt and take over and displace, set aside the state law. i suspect that the plaintiff puzzler after realizing this provision in 1608, when it can do to the case is avoid the state form and file -- for, and file in federal court. i have talked about this part already in 1608. wilson cover that part of damages. we finished discussing this today. there is one issue that does come up in excess litigation. whether or not the report from the certified taxes specialist is discoverable. i mentioned this because i have had a couple of clients where it came down to this.
they had the foresight to hire access specialists. they want to protect themselves. they got an expert and report and they start to make changes. they did not complete their changes and they got sued by an excess case. not in state court but in federal court. i can't quite ask for a stay. the lawyer says it does not apply in federal court. i say ok, we have these measures underway. what are your damages, let's talk about this and try to resolve this case. the plaintiff lawyers say, i want that report. it is not clear if it is discoverable. -- do you have to turn this over to the other side? what i have received in response to that is of course it is discoverable and if you do not turn it over, we will move forward with our case. regardless of the barriers that have been removed or in the process, the response i get is,
you are no better than the other person who ignores their right. that is an interesting issue that comes out once in awhile. supervisor cohen: has that situation been rectified? has there been a judge to rule on the scenario you just presented? >> no. the issue has come up to a judge who somewhat litigates said. in most of these instances most clients as do not want to take that on. they do not want to bring it to a judge and have a ruling on that. they are afraid or some clients are afraid to put off the plaintiff as a lawyer. they do not want to take that step and necessarily jeopardize their case or resolve the case. >> what cyrus business? >> -- what size business? >> it is small. a mom and pop business that has
been open for 20 years on the sunset. there were on their way to doing the right thing and it were not quite done with their remediation work and they get handed a lawsuit. supervisor cohen: did you turn over the plan? >> i did not. i turned it over. the position i am taking is it is not relevant for the plaintiff's purpose because were identified the barriers. in federal court, there is an order that tells you what you must do, we have a joint inspection and we had one with the experts going out there. we both jointly looked at the work that was planned, the work that had been done, and the work to be completed and we agreed that this business was well on its way. it did not quite finished on time. >> for what reason with the other the interested in looking at the plan? what would he/she extrapolate from that? >> i spent -- suspect that most
reports are very broad, it is supposed to cover everything that the expert finds. and therein lies the problem. if you disclose everything to a litigant or cereal plant of's lawyer, he or she may take liberties with that report. my client's fears are that they're going to then somehow increase their case. they're going to use it in the future or what -- comeback in a year or two and see if you have made those changes and they may be only enough to make five or 10 changes. they did not get 26 through 10. they can come back in and say it is time to talk about 6010 in lawsuit no. 2. it is possible. >> can i comment that the california unruh civil rights act seems incredibly broad? that is a basic problem when you
have proactive intent to discriminate based on race, gender, national origin, or other factors. i could see why three times actual damage, we're talking about small mom-and-pop businesses that are struggling to survive and to place that seemed a burden on them just sounds -- that is not the intent of the civil rights act. that is a key problem here, it seems. i do want to ask about the timing of the process. when you have a casp specialist, if the lawsuit has begun, can you still get the casp specialists under state law to give you that extra 90 days? >> is too late at that point under state law. it should not dissuade a business owner from getting a certified instructor to look at your place anyway. i also -- often council place -- counsel clients.
hwo do -- how do i resolve this case, what do i need to do to resolve this case? i counsel them, look beyond this case, did not address the barriers but they barriers as you can. you did not want to have a second lawsuit as i was offering my example to supervisor cohen there. it can come back and that will be under a different set of circumstances. the lawyer can say the second case dealt with different barriers from the first. there is no ha preclusion. i get a second bite at the apple. it is not because i am after you. it is because they did not consider their obligation tree that is evidenced by the fact you only made partial repair. whether we believe that i'm not so sure. are there any other question?
thank you for bringing it down so greatly. the next is carla johnson, the acting director. >> thank you for addressing -- giving me the opportunity to address the committee. we're here to see that all of our city programs and services are as accessible as required. toward that effort, we work with other city departments, it could be rec and park, public health, mta, public works, on their ada construction plans and we make sure that other construction projects are successful. if that in context to say that the city has to do many of the same things that small businesses do under the ada.
we happen to be covered by a different section. that means that we look at the barriers to our existing city buildings and we put together a plan and said priorities. oftentimes the plan has to be stretched out in time. in some cases by over 10 years. it is not always easy for the city to find the funding. we're looking at access where we're competing with a lot of other important programs. the city makes accessibility a priority. it is about civil rights and is about opportunities for the community to interact with each other and participate in activities. we prioritized that because of the law. believe it or not, even with the good work that the city has done over the last year to comply with the ada, we still get sued and some of the attorneys seem to be kidding -- more interested in getting attorneys' fees than effecting change. sounds familiar? the one big difference between
the city and small-business is is we have experts on staff who understand the access code. the ada says a business owner or public accommodation has continuing obligations to remove their barriers. some people, some businesses often times tekotte -- do not understand that the ada applies to existing buildings, even if there is no construction or remodeling. when the businesses are complying with the state building code because they have taken out building permits and gotten inspected, they do not comply with the american disabilities act. this is where this body can have such a significant and positive effect on making our business is accessible and on preserving the economic vitality of our small businesses. i see that information and
technical expertise is the biggest challenges that face is the small-business owner and the second challenge is making sure the city with all the different permit review agencies that were -- that we are coordinating our reviews and offering our recess -- our assistance to solve problems. i have advice about the casp inspection program, i am a casp inspector. this is a practice step and one of the things that you can do as a business owner is try to get good advice as quickly as possible. to hire a casp inspector, you want someone who has experience in design, construction, and inspection and in order to get illegal benefit to get that lawsuit on that 90-based day, your consol needs to be certified by the state of california under unruh.
the need to be familiar with the accessibility guidelines of 1994 and 2010. and the california building code. my recommendations for business owners when they are interviewing is to ask them about their background and not just rely on the resume. to ask them how many casp inspections and ask for references and follow up by calling the reference and visiting the business. it is helpful if the inspector works with an attorney who can provide legal advice and if they work with the contractor to provide some construction estimates to go with those recommendations. the inspectors should also pulled in full building permit history and include a summary in order to a understand the context or previous triggers for access under the california building code. the inspector should identify all the barriers but be capable
of identifying those problems and solutions. an inspector should help the business to a simple plan for very removal that is tailored to their site and their financial circumstances. not everybody is the same. what can we do in the city to help? the more that we can do to get information to the hands of the small business owner, the more likely the owner will be able to tackle the problem in a rational and methodical fashion. that is why supervisor chiu's legislation is helpful, it calls for the landlord and tenant to work together and the first step is acknowledging there is an access problem. i have one example. our previous speaker mentioned it as well. in san francisco, over 80% of our buildings were built before 1970. when our first -- first access code went into effect. the percentages are higher for the number of buildings built before 1990.
when the ada was adopted. many have an interest at -- an entrance that opens onto the street and they have a step that makes it extremely difficult for wheelchair to enter. the tenant has to make a permanent change to the building. under the legislation, a landlord might choose to take that task on themselves to exert some control over the solution. fixing a problem like a step can be complicated. the building may have historic significance, so the building permit would have to be reviewed by the planning department and there could be some limitations about the changes you have made to the upside. or the solution to the step might mean you have to do some work on the sidewalk in the public right-of-way and request a minor sidewalk encouragement. in some cases, the solution to that step might have an impact on the building structure. the foundation or the flore frame. -- floor frame.
you might have to juggle the requirements of three different said the agencies, building inspection, planning, and public works. in our office -- our office has done with the work -- done w ork to talk about how we can coordinate our efforts. regina dickerson has promoted our brochures but the department can do more and develop a process for resolving conflicts when access is the goal. one idea would be to establish a prepublication building process -- permit process for you ask the departments to come together and we and on how the different proposed -- weigh in on how the different proposed solutions will be affected by the codes. my closing thoughts for a small-
business owner is that the corrective, that you keep records because once they have started to do the work, once they have put together the plan for the work they intend to do, you need to be able to demonstrate that good faith effort that you are addressing your obligations that are readily achievable. and if the business owner does receive a demand letter, they should consult with an attorney immediately. when you send your response, including a brief summary of the good work that you have done at your property. show that you have taken this seriously and you have a plan for the future. actually, i have heard the small businesses that have gotten the casp report and posted the certificate in the window are not the ones that are getting hit with these most recent lawsuits because i think these attorneys are in many cases more
interested in their fees and they go on to the next low hanging fruit. thank you, supervisors. supervisor mar: thank you. the next speaker is from the department of building inspection. we also have a handout from -- there is a number of handouts in front of us. >> thank you for the opportunity to speak to you today. i am building inspector thomas fessler, representing the department of building inspection. it is a local agency with the authority to enforce the california building code with the san francisco amendments. disabled access requirements are generally found in chapters 11a housing, and 11b, public buildings. accommodation in commercial
buildings with publicly founded -- funded housing. because the focus of the hearing is addressing small businesses, i will amend my amar -- remarks to chapter 11. -- 11b. dbi enforces the requirements only during planning review and construction of building permits. all the buildings need to comply with all the codes within the california building code. including the accessibility requirements found in chapter 11b. the buildings are covered under section -- of the code. when repairs are made, they shall require -- comply with all the requirements.
when the department finds this could create a hardship, clients will be limited to the actual work. the exception is recognized and unreasonable hardship would exist if the cost of compliance exceed 20% of the cost of oppression. under some conditions in existing buildings with enforcing agency determines the compliance with any regulation would create an unreasonable hardship and the exception shall be granted when equivalent facilitation is provided. within the san francisco building code, the administrative bulletins have been adopted in order to recognize this and under specific existing site conditions, one equivalent -- one equivalent [unintelligible] is provided, the administrative
bulletin allows for the use of power door operators and level landings at doors. if the equivalent facilitation cannot be obtained, within the specific conditions found in the administrative bulletins, the permit applicant can appeal to that -- to the access appeals commission. the commission can approve various methods of providing equivalent facilitation on a case by case basis. the department of building inspection does not specifically in force the ad -- enforce the ada. most requiring accessibility meet or exceed the ada standards. building owners and tenants are required to provide reasonable accommodations to the person
with disabilities with or without a building permit. it should be emphasized that there is no exemption or grandfathering of existing conditions within buildings. property owners and tenants are required to provide reasonable accommodations. the code or providing equal facilitation. pbi has provided training in two sections within the past year and more training is planned this year. the casp certified inspectors will be utilized as technical experts for the staff and the public when accessibility questions arise. they will be placed throughout the department to facilitate compliance with the code and provide information and training
for staff and public. the department is encouraged by actions taken by the division's state architect to amend chapter 11b in order to make the california building code a safe harbor with respect to ada standards. supervisor mar: can i bring back to the casp inspectors? how many are there and how many are seeking certification at the state level? >> currently, there is one certified state inspector. there is another person who has taken the exam but they are waiting for the results. that should come any day. and -- that is my knowledge of who is certified at this point,
but the department is working toward getting more people certified as casp. so, this issue with the casp certification has gone up to the state level. the state architect, there is a new code cycle coming up in 2013 for the california building code. and it is a matter standing that the division state architect is using the 2010 ada standards as of the model to base the california building code, sections in chapter 11 b to the federal and state requirements.
supervisor mar: how often do you allow disability access waivers? >> again, that is one of the terms that i would like everybody to try to stay away from. there is no waivers when it comes to disabled access. you can either provide equivalent facilitation or you can apply for financial hardship based on cost constraints, legal constraints, or physical constraints of the building. there is always a requirement under both the california law and ada to provide access in the building and vernon. supervisor mar: and/or -- and your dbi bolten gives voters a
sense of past modifications and what the hon. hardship or the process of -- unreasonable hardship for the process of -- allows someone to understand what modifications have been made over time in a small business? >> a good example is a level landing at the front entrance of a small retail shop. when you get that situation, you have this -- there is an administrative bulletin in the san francisco amendments that would allow for youtube place power to operators in -- allow you to place power to operators. in that situation, if you -- it would allow us to approve it, you are providing an equivalent
facilitation. you are not providing the exact code language accessibility standards but what you are doing is providing something that would be considered the equivalent to facilitation because it is not a new building. the ada and california building code addresses that potential in the existing building that you would be able to provide access using by means other than the specific requirements within the code. the department over the years has to find a few different situations in the city -- defined a few different situations in the city that occurs that we can administratively approve that is -- that the person is