The deli operator had taken up four “15-Minute Parking Only” stalls directly in front of their store. The area had outdoor carpet, great wooden picnic tables for seating and wood pallets placed around the perimeter as a temporary fence. Still visible was the 6” raised curb painted green with “15-Min” parking.  There was absolutely no ADA access into this outdoor seating area, and lack of ADA accommodation was exaggerated by the fact that the shop owner did not provide an ADA table up on the walkway nor any directional signage alerting disabled customers to the appropriate area.

Landlords and property managers have a constant concern over their properties ADA elements and the level of compliant access provided at any given time. But now, we have tenants taking over areas of, in what I saw, the parking lot to provide make-shift “outdoor seating” without any thought of ADA access.

Well, apparently, these quickly built seating areas are drawing the attention of many professional ADA plaintiffs who are aggressively filing lawsuits at a record pace.

In the last thirty days, I have received dozens of phone calls and emails from defense attorneys and panicking landlords trying to wrap their arms around these lawsuits.

Even though these “outdoor seating” areas are drawing the attention of many professional plaintiffs, they are not the only areas of violation that are being called out.

Here is a list of the most common violations that I have identified from thirty-five current lawsuits brought by five plaintiffs:

• Disabled parking surface slope, striping and signage non-compliant

• Curb ramp slope exceeds 8.3% and lacks truncated domes

• Accessible path of travel not provided from disabled parking to tenants main entry (items placed outside on walkway reduce clear width)

• Tenant entry door lack accessible door handle and pounds of push/pull pressure to open door exceeds 5 pounds max

• Entry door landings exceeds 2% max in all directions

• Entry door exhibits a raised lip transition to door threshold greater than ¼”

• Entry door exhibits non-compliant door mat and interior walk-off mats exhibit worn, lifted corners and unsecured to floor

• Clear space within tenant space reduced below 36” minimum around displayed product and shelves.

• Tenant sales counter height does not provide for wheelchair access and lacks a compliant point of sales machine

• Restrooms lack compliant signage, lacks clear space around toilet, grab bars not positioned properly or lacking, mirrors, soap and paper towel dispensers too high, toilet flush handle on wrong side, lavatory too close to near wall and pipes underneath not properly wrapped.

These are just the alleged violations that are repeatedly called out in most of the lawsuits. There are many more that involve violations specific to sight impaired, hearing impaired and those using mobility devices.

Alleged violations specific to the “outdoor seating” areas are as follows:

• Ground surface slope throughout seating area exceeds 2%

• Lack of wheelchair access to the seating area

• Lack of wheelchair accessible tables

• Head clearance reduced below 80” due to “pop-up” tents

• Pop-up tent tie-down straps creating “trip & fall” hazard

• Outdoor carpeting not secured, edges curled & uneven transitions

• Poor or insufficient lighting which creates shadows increasing trip and fall hazard

• Lack of compliant disabled parking near outdoor seating area

• Lack of compliant path of travel from closest disabled parking into the seating area

• Lack of accessible wayfinding and directional signage in and around the seating area

When the Covid-19 shut down started, I noticed that all calls and emails involving ADA lawsuits virtually stopped coming in. I hoped that it was due to professional plaintiffs staying home and taking a break from their normal activities. But when the courts opened back up, the flood of lawsuits began to flow, and it is picking up speed.

We all know there is never a good time to be served with an ADA lawsuit, but especially right now with so many small businesses severely damaged by the shutdown. If there was ever a time to be focused on your properties and your tenants’ business … it is now!

There is no reason to just hand over our hard-earned income to professional plaintiffs’.

Cities and counties may have unique ordinances regarding business outdoor operations and configuration. Thus, CCDA strongly encourages businesses to seek guidance from a Certified Access Specialist (CASp) in their local area and of their local building department.

CCDA has worked with various cities to implement access programs for businesses. Cities and local leaders are welcomed to reach out to CCDA to learn more about how to implement accessibility programs in their own communities and to get connected with other city leaders.

Additionally, CCDA has produced the Accessibility Construction Inspection Checklist 2020 Edition for trained building code officials and building inspectors to utilize when inspecting accessibility features and design. CCDA continues to work as a resource for all stakeholders including building professionals, business owners, legal, and the disability community to build a truly accessible California.

Since 2013, CCDA has tracked the Top Ten Alleged Construction-Related Access Violations and has conducted data analysis on legal complaints that were filed with the California state and federal courts by participating law firms.

CCDA has continued to see various elements of parking included in alleged construction-related access violations. In January – June 2020, there were 921 claimed violations of an insufficient number of designated accessible spaces, existing spaces are non-compliant or have excessive slopes/cross-slopes, improper dimensions, and striping. The second most reported violation, with 640 filed complaints is related to van-accessible and/ or loading zones that were non-compliant or non-existent. CCDA has also recorded 562 of other parking related violations within the top ten alleged construction-related access violations.

Table 1: Displays top ten alleged construction-related access violations in California by category. Table represents data collected January - June of 2020

CCDA has also collected data of the locations of alleged construction-related access violations. Although bay area regions (San Jose and Milpitas) rank first and second, regions of Southern California are also recorded frequently in data collected.

Table 2: Displays top ten ranked locations of alleged construction-related access violations by most common Zip codes. Zip code 95112 is ranked first. Table represents data collected January - June 2020.

Top Ten Alleged Construction-Related Access Violations are recorded in six-month increments. The categories of alleged parking violations will be discussed more comprehensively in CCDA’s Annual Report to the State Legislature that can be found on CCDA’s website. The 2020 report is currently scheduled for publishing in early 2021.

For questions regarding information provided, CCDA can be contacted at:

Department of General Services
California Commission on Disability Access
Address: 400 R Street, Suite 310
Sacramento, California 95811
Website: https://www.dgs.ca.gov/CCDA
Phone: (916) 319-9974
Email: ccda@dgs.ca.gov
eFax: (916) 376-4216

Questions with the current code
When it comes to circulation paths and vehicular areas, the current code leaves something to be desired.  There is no clear prohibition against an accessible route coinciding with a vehicular traffic area.  The definition of “accessible route” includes “crosswalks as vehicular ways,” but the code doesn’t define what a crosswalk is.  CBC Section 11B-502.7.1 states that a person who has parked in an accessible parking space shall not be required to travel behind other parking spaces.  However, this section does not mention travel behind parked cars for disabled people who have not parked.  In my experience, most CASps would agree that an accessible route coinciding with a vehicular area is not a best practice, but it is permitted by the current code.

Furthermore, the term “hazardous vehicular area” in CBC Section 11B-247.1.2.5 has been ambiguous and controversial for many years.  What constitutes a hazardous vehicular area?  I have heard the argument over the years that parking areas are not hazardous due to slow driving speeds.  While I generally don’t agree and I believe that opinion is the minority, I can see how the current code could be interpreted that way.

Two steps forward
To address the questions above, Section 11B-247.1.2.5 will be completely replaced, and a new Section 11B-250.1 will be added to Chapter 11B.  These changes will remove the term “hazardous vehicular areas” and require circulation paths contiguous to vehicular traffic to be physically separated from vehicular traffic.  Vehicular traffic includes travel through parking facilities, into and out of parking spaces and electric vehicle charging spaces (EVCS), along roadways, driveways and drive aisles.  New definitions have also been added for “driveway” and “drive aisle.”  There are several exceptions to Section 11B-250.1, which we’ll get to in a few seconds.  Nonetheless, this new code language will now more clearly require a separation between circulation paths and vehicular traffic, regardless of whether these areas could be considered non-hazardous.

Section 11B-250.1 requires circulation paths contiguous to vehicular traffic to be raised 4 inches minimum above the area where vehicular traffic occurs, with several important exceptions:

Section 11B-250.1, Exception 1

Curb ramps and blended transitions with detectable warnings complying with Section 11B-247 may be used to connect raised circulation paths and pedestrian crossings within areas of vehicular traffic. Blended transitions and cut-through medians with detectable warnings complying with Section 11B-247 may be used to connect circulation paths and pedestrian crossings at similar elevations within areas of vehicular traffic.

Of course we need some way of transitioning from the raised circulation path into and through the vehicular traffic area.  This exception allows for that.  It also recognizes that a blended transition or cut-through median may be at similar elevations to the crossing within vehicular traffic areas - what some might call a “flush transition.”

Section 11B-250.1, Exception 2
At locations where sidewalks and walks in the public right-of-way cross driveways without yield or stop traffic control, compliance with this section shall not be required.

It appears the intent of this exception is to exempt sidewalks from having detectable warnings where there is no official yield or stop traffic control in the public right-of-way.  It could indeed be problematic if unofficial traffic control on private property triggered detectable warnings in the public right-of-way.  However, the language is not completely clear.  Future advisories and/or code amendments from DSA will hopefully provide clarification on this.

Section 11B-250.1, Exception 3
At locations where circulation paths cross driveways or drive aisles, circulation paths shall not be required to comply with this section and detectable warnings shall not be permitted. Beyond the crossing where continuation of the circulation path within a parking facility leads immediately to and does not continue beyond only parking spaces complying with Section 11B-502, passenger drop-off and loading zones complying with Section 11B- 503 and electric vehicle charging stations complying with Section 11B-812, the circulation path shall not be required to be raised.

Detectable warnings can act as a hindrance to many wheelchair users.  We have all seen cases where long strips of detectable warnings were used to demarcate a circulation path within a vehicular area, requiring a wheelchair user to travel over the truncated domes.  This exception addresses that situation.  It also exempts circulation paths beyond the crossing from the raised path requirement if the circulation path only leads to parking, EVCS, and passenger drop-off and loading zones.  This is a nice addition to the code for wheelchair users, while also providing raised paths and detectable warnings where needed for the visually impaired.  On a related note, parallel curb ramps with long landings will now be required to have a 36” minimum portion without detectable warnings to allow a wheelchair user to travel in the direction of the sidewalk without passing over the truncated domes (see amended Section 11B-705.1.2.2.2).

Section 11B-250.1, Exception 4
In alterations to existing parking facilities, including alterations required by Section 11B-202.4, physical separation may be provided with detectable warnings complying with Sections 11B-247 and 11B-705.1 in lieu of raised circulation paths.

In existing parking facilities, raising the elevation of the circulation path can be very difficult.  Maintaining positive drainage often requires a much larger area to be altered.  This exception allows detectable warnings in lieu of raised paths in alterations to existing parking facilities, including Path of Travel alterations.

Section 11B-250.1, Exception 5
Access aisles serving any electric vehicle charging station vehicle spaces complying with Section 11B-812, parking spaces complying with Section 11B-502, or passenger drop-off and loading zones complying with Section 11B-503 shall not be required to comply with this section.

This exception is fairly straight-forward.  Access aisles are of course exempt from the raised path requirement.  Also, detectable warnings shall never be located within access aisles.  While I would say the current code already makes this clear, it is now being added more explicitly in the following amended sections: 11B-502.4, 11B-503.4, and 11B-812.3.

Section 11B-250.1, Exception 6
At each electric vehicle charging station complying with Section 11B-812 where the charger and its controls are oriented toward the vehicle space it serves and the charger’s clear floor spaces for operable parts and point-of-sale devices are at the same elevation as the vehicle space, the accessible route complying with Section 11B-812.5.2 shall not be required to comply with this section.

The intent of this exception is to permit configurations which allow a wheelchair user to access the EV charger and connect it to the vehicle without navigating changes in elevation.  It isn’t completely clear what is meant by “…the charger and its controls are oriented toward the vehicle space it serves.” After working on many EV projects, I have found that locating the EV charger at the front of the access aisle and designing the accessible route to connect to the back of the access aisle seems to be the most efficient configuration for dual-port charger applications.

The path continues
The new code provisions will result in increased accessibility for the visually impaired and provide clarification on the proper application of detectable warnings - which are often over-used or misapplied creating difficulties for many wheelchair users.  While the new code language solves some important problems, it also brings with it a few new issues that will require interpretation.  As a member of the CALBO Access Committee I can report that our group has been studying these provisions in detail with the goal of assisting our industry in applying them consistently.  I hope this article has shed some light on the intent of these new provisions and proves helpful in applying them.  Stay tuned for additional information and resources in the coming months.

Accessible features for building built with private funds was ensured by law in 1969, and the standards to be applied were found in Government Code 4450 which cross adopted by Health and Safety Code 19955 et seq.. The State Standards, which applied to buildings built with private funds at that time, were specified as American Standards Association A117.1/1961. It is important that all Californians understand that there were accessible standards that were to apply to local construction beginning in 1969 and for those privately funded developments that did not include those standards may currently be in violation of state law and subject to local Public Nuisance Action. It is important to note that in the Same 1969 legislation Local Building Departments were, and still are, granted broad discretion in the application of those standards or as the Statute refers to them “ Literal requirements.”

A local Building Department is granted broad discretion to grant exceptions to the literal access requirements. Those “literal requirements” are ANSI 117-1961 for a number of years beginning in 1969 and subsequent regulations written by the Division of the State Architect and adopted. Of course, the statute included the requirement that deviation was only possible as long equivalent facilitation was provided but the statute offered no other tools to provide for a clear understanding of what was met by the equivalent Facilitation wording.  In the succeeding years from 1969, the State Statutes on accessibility continued to evolve.

AB2731,  chaptered in or about 1971, extended the ANSI standards to include public buildings leased, rented, contracted, sublet or hired for a period in excess of two years by a City, County, District, or State if the facility is more than 50% occupied by that City, County, District or State. There were further changes made by AB2396, chaptered in or about 1974, stated that access regulations shall be adopted by the State Architect in lieu of applying the ANSI standards but those adopted regulations could not be less than the pertinent provisions in the then Uniform Building Code as well as amendments made by the State Architect in consultation with various agencies and organizations, we now refer to as Stakeholders. Again in 1975 AB 2033 tweaked the State Statutes by making the Access Standards adopted by the State Architect to be minimum standards instead of identical to the Uniform Building Code and provides greater discretion in insuring access and usability. All these changes were to the Government Code but it is important to remember that the Health and Safety Code, beginning back in 1969, cross-references Government Code 4450 et seq., as being applicable to facilities built with private funds. 

In the previously stated legislation, there is no specific procedure for adoption. It almost seems, at least legally, that whatever the State Architects Office used as an access standard would be considered the applicable standard to apply during those intervening years until there was a public hearing adoption in 1982. To this day I have been unable to find in the public record exactly what the State Architects procedure for adoption in 1974 until we forward to 1979.

In 1979 SB331, created the Building Standards Law, establishing the Building Standards Commission adoption process. Although this law wasn’t expressly written for Access it the development and implementation of access regulations into the public process.

All the California statutes point to a surprising but clear conclusion that ensuring the Civils Rights of all California Citizens on private property with respect to Access is the responsibility of the Property Owner and the Business. But local building department’s clear authority to ensure compliance with access standards regulations outside the plan review and inspection process.  When a local Building Department ignores existing violations dating as far back to 1969 and focuses only on the permit applicant, they miss the opportunity to address a number of circumstances that impact the Civil Rights of their local citizens.

The local Building Department exercises statutory authority in both building permit processing as well as code enforcement (in cooperation with their local City Attorney or District Attorney if collecting State related fines)  to meet the Mandatory Duty demanded by HSC 19957.  While it is true that Civil Rights violations of the Jesse Unruh Act are pursued by the State of California Attorney General Office or in private nuisance suits, it is often overlooked that existing violations of the Access Regulations are Public Nuisances and can be pursued as such by local building departments outside the traditional Code Enforcement Division and Departments under the authority of HSC 19958.6.

Of the 480 plus jurisdictions in California most of them split permit processing from Code Enforcement consequently there are structural reasons why local building departments almost exclusively address existing Access violations through the permitting process. But Building Departments have authority to address existing access violations as either part of any locally adopted nuisance ordinance or under the statutory authority granted by HSC section 19958.6.

In general jurisdictions in California rely solely on the use of the permit processing (e.g. Plan Review and Inspection) when meeting their obligations under HSC 19955.7 but if we ignore ongoing violations (e.g. violations that were violations at the time the facility was altered or built) we are not serving the interests of our local citizens including property owners and tenants.  In addition, by only devoting resources for access compliance to permit processing, jurisdictions inadvertently create an uneven economic playing field between different businesses within their jurisdictions.  With respect to Access and Usability on public and private properties, there is both an economic and ethical responsibility to take another look at how the State, Cities, Counties, and Special Districts ensure that Civil and Property Rights are adequately addressed.