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As a result, numerous small-business owners throughout the Bay Area may think that they are ADA compliant when they're not. The Bay Area also is a patchwork of varying, inconsistent interpretations of ADA law. Oakland, Berkeley, and San Francisco have the best ADA inspection processes in the country, said Paradis — Berkeley is, after all, the proverbial home of the disability rights movement — but they only enforce state building codes, which differ from federal law. California, which bases its own building code (Title 24) on the so-called International Building Code, has been struggling with incongruities ever since the federal ADA law was passed in 1990, Mikiten said.
"Sometimes they're as small as the word "and,' versus the word "or," he said, adding that a single word can seem picayune in terms of semantics, but in the context of a state code, it's huge. Other times, he added, it's the size or orientation of a shower (the guidelines are different in California than in the federal law). A well-versed ADA litigant could even split hairs over the floor space outside of an accessible restroom: Federal law stipulates that it be 18-by-18 inches, so that a blind person could stand and read the braille on the sign, but remain outside the swing of the door. But state law is more vague, said Craig Williams, another architect and ADA specialist who is based in Sebastapol. It only requires a clearance area of 4-6 inches.
"Naturally, any building department with any brains is going to stamp its drawings and say, 'This does not guarantee compliance with federal ADA,'" Mikiten said. Because federal laws get updated every three years, on a different schedule from state laws, it's very hard for the two to remain in lockstep.
But Paradis, who also uses a wheelchair, is less concerned about discrepancies between federal and state law than about the fact that most cities don't enforce either of them. While some, like Berkeley and Oakland, have ADA specialists on hand to check floor plans and weigh in on the permitting process, others leave it up to the landlord or architect to keep abreast of the law. Many landlords shift accountability over to the businesses that rent their buildings by adding an ADA compliance clause in the lease agreement.
That's especially problematic for businesses that move into old buildings: Before federal ADA law passed in 1990, most old buildings were "grandfathered in" to new provisions in the state or city code; now they have to periodically look for violations in their buildings and make whatever improvements are "readily achievable" — meaning, just cheap enough to not shutter the business. But most businesses and public agencies don't know that, no matter how much they want to abide by the law. First Presbyterian Church of Berkeley built a new sanctuary in 1971 to bring itself up to code, but it was still the subject of a lawsuit last month, when Dytch filed a complaint for lack of convenient access to the men's room.
And sometimes ADA laws rub up against historic preservation laws, which are also well entrenched in cities like Berkeley and San Francisco. Carole Conn, who directs the public service program at The Bar Association of San Francisco, said she recently heard of a San Francisco business that wanted to become ADA-compliant, but couldn't make the necessary improvements without flouting city preservationist codes, since its building had been designated a historic landmark. "So the city wouldn't grant the permits, and the business is still trying to negotiate what to do," Conn said. She added that in many instances, building departments, preservationists, and ADA activists are all at cross-purposes, even if they have the best intentions.
But Paradis blames the rash of ADA non-compliance on a general misunderstanding of — or obliviousness to — both federal and state laws. "Generally, what we see is a failure to meet either standard," he said. "This crops up with some regularity, and it seems to be rooted in the problem that architects and planners don't know the codes." He added that as a wheelchair user, he constantly encounters restaurants with no accessible restrooms, or businesses with "really significant barriers" to people with disabilities. Even in Berkeley, which, for all its lip service to equal rights, still has its fair share of raised curbs and uneven sidewalks.
But when you see such aberrations, it's hard to figure out who to blame, he said. If individual business owners do a poor job of researching ADA law, city building departments are no better. On the whole, Paradis thinks that city inspectors' knowledge of ADA law is scattershot, at best. "Some are overwhelmed or understaffed, and don't catch violations when they're issuing permits," he said. "So there's this fallback of private litigation."
In other words, plaintiffs like Albert Dytch have become the only mechanism through which ADA law is enforced. That effectively means any business can be sued at any time.
It's also created an almost paralyzing climate of fear among business owners, even in the famously scrupulous Bay Area. And it's inhibited new restaurateurs from moving into old buildings in downtown Oakland because they're afraid of lawsuits, said Calvin Wong, a former director of building services for the city.
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