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When this Statement of Interest came out, I had quite a few emails, texts, and telephone calls come through to me. Some were from disabled colleagues who are frequent travelers like myself – people who face way too many tall beds in hotel rooms. Some of those contacts were from colleagues expressing some relief because they finally had something that they could share with their clients that backed up what they’d been trying to convince them of for years, that high beds in hotel rooms really do pose a barrier to accessibility in hotel rooms. The sentence, “Guests cannot fully or equally use a hotel room if they cannot get onto the bed” speaks volumes.

I have been a frequent traveler for many years now and have come across many beds that were difficult to get up into. Getting into a high bed is much more difficult than getting out of one since gravity works better for me going from a high bed to my wheelchair. The difference in height between the bed and most wheelchair seats can be pretty significant. Sometimes I can lean against the edge of the bed and try to sling my legs over and my trunk back on the count of three. I’ve even been known to transfer onto a side table as a transfer platform and then onto the bed (I don’t recommend either of these methods – please don’t try this at home, kiddos).

I’ve also fallen more than once when the bed was both too high and really soft. It makes for a funny story now, but it wasn’t funny at the time. I had stayed at this hotel before and always stayed there because they offered great accessibility, but they had purchased new mattresses between visits, putting the beds at a height that was at least 34” AFF. I spent quite a bit of time that afternoon trying to get some resolution to the problem, with no results. That night, as I was trying to get into bed, I fell as I was trying the “1-2-3-kick!” maneuver. And when I kicked, I also kicked my chair across the room, which I had to crawl over to retrieve once I was able to get my composure. This story, along with the suggestion of, “If you don’t figure out a solution to lower this bed, I’m going to bring a pillow and sleep on a sofa in the lobby,” put them into action pretty quickly. They removed the platform and box springs that night (before and after photos below).

The Great Plains ADA Center has published the “ADA for Lodging: Best Practices and Standards” that gives some recommendations for hotel beds, including a bed height fact sheet. The Statement of Interest also includes some good suggestions that hotels can use to make reasonable modifications: “This flexible standard is inherently fact-specific. For example, some hotels might be able to use a combination of lower profile mattresses, box springs, and bed frames to lower the beds permanently in some of their rooms. Or, some hotels could perhaps provide lower beds upon request in a room by using rollaway beds, removable bed frames, adjustable height bed frames, or bed frames on removable risers. Such flexibility could allow hotels to continue to use higher beds for guests that prefer them, if they so choose.”

Numerous situations exist that require a report by a CASp to describe the existing conditions, but do not need to include all the requirements defined by CRASCA. These reports go by different names from firm to firm, we call ours “Accessibility Reports”. My company has not completed a CRASCA report in years, but provides accessibility consulting assisting owners, design professionals, government agencies, facilities managers, attorneys and real estate agents understand the requirements of the building code and ADA Standards. Depending on the needs of our client, our reports are prepared and presented differently. Here’s a few examples of the topics we will be discussing:

• Property Purchases: Typically for us, the potential buyer is looking for items that will become a major dollar item when doing a tenant improvement project. Our report is usually just in a letter form with few, if any, photos. One of our clients was looking to purchase a 60,000 sf, two-story, manufacturing/office building and called us to look at it assuming we would give it our blessing. The ground floor was about 10 feet above the public right-of-way with no accessible route (2 very steep drive aisles), all the exterior doors had at least a 2” change in level from walkway to finish floor, and all the offices, conference rooms, and accessible restrooms were located on the 20,000 sf, 2nd floor with no elevator. With that knowledge, they negotiated a lower purchase price knowing all the work that was going to be required. 
  
  Ensure your contract describes this limited scope of work. We had another client that was purchasing a pre-1991 medical office building in which a restroom had been remodeled to be accessible. In this case, we provided 2 proposals; one for a quick overview to highlight the major issues and one for 10 times the fee to provide a detailed report. They opted for the overview. They purchased the building and performed upgrades and tenant improvements, without any further assistance from us. Two years later, we got a call from a now irate owner because the inspector of the tenant improvement made comments about the lavatory not having 60” clear floor space, demanding why it was not included in our report. I pointed out which proposal had been accepted and the fact that our report mentioned the restroom and that further research was necessary. They were looking for us to financially contribute to making corrections.
  
  Fortunately, that became a non issue because of the detailed scope of work we established up front.
  
  
• Working with design professionals: When I developed our data collection process, a series of spreadsheets that have formulas that analyze the input and list if an item is compliant or not (I can’t keep all the little nuances of the code in my head), my focus was on obtaining enough data that we could provide design solutions without a return visit to the site. When we started working with our design professional clients, our reports only included non-compliant items. We showed them all the other data we acquired at the site. We now routinely provide them copies of our spreadsheets, which provide information on all the elements that we surveyed whether compliant or not, as well as numerous dimensions.
  
  
• Drawing reviews.
  
  
• Construction reviews.
  
  
• Expert Witness testimony.

Depending on who is the target audience for your report dictates what information and how that information is relayed. We recently completed a 3000 plus page report for a 79 acre site containing 48 buildings (1.6 million sf). The buildings ranged in age from 1859 to the mid 1940’s with various improvements over the years. After getting started and understanding who and how the report was going to be used, we revamped our reporting process completely so that with 5 mouse clicks you could navigate to any element (stair, ramp, restroom, door, etc) on the site and access the code related sections. This has led to a new opportunity where we have been requested to catalog non-accessibility items using our reporting method.

Finding opportunities outside of writing CRASCA reports and providing guidance on understanding ADA requirements does have its limits. Because our training requires learning about the law and understanding the correct design solutions, we often use that knowledge out of our area of expertise. For all the attorneys reading this you can cringe or skip this part because I have discussed with clients my understanding (based on the seminars I’ve attended) of what the law says and also discussed with attorneys what sections of the law they should review (they are the business owner’s lawyer, but are not fully vested in this area of law).

I do always let clients know I’m not an attorney and any legal advice should come from an attorney. I recently received a call from a business owner who had been sued and wanted me to write a letter that he could send to the plaintiff’s attorney describing why I thought it was an equivalent facilitation. I informed him verbally of what I could see in photos; but, as this was now a legal matter, I let him know that I would only provide written documentation for the case if and when he hired an attorney and the attorney hired us.

Just as a CASp should not provide legal advice, they should not provide design solutions. A CASp report is part of the “Programming Phase” used to describe the site conditions that need to be addressed by a design professional. Because CASp’s have an in-depth knowledge of accessibility requirements, a CASp can consult with design professionals on the potential solutions. Since a requirement of a CRASCA report is to have “an identification and description of the structures or areas that need correction and the correction needed”, some understand this as needing to provide design solutions. I believe the intent is to state in generic terms what needs to happen. For example, a curb ramp is noted as being built incorrectly; therefore the requirement of the CASp is to state “a new curb ramp is required” but not provide any details of what that entails.

We look forward to seeing you at the seminar to discuss these and other opportunities.

This does not necessarily mean they are totally blind, as in, they do not see anything. They may have enough useful vision to identify colors or large shapes, or they may have light perception. But “blind” is an acceptable term for those who identify as such. There are also people who identify as low vision, meaning that they may have more useful vision than someone who is blind, but still not enough to, for instance, read a standard print menu without assistance, or drive a car. When in doubt, asking the person or people in question what they would prefer is always a good way to go.

Now that we have that out of the way: accessible design for people who are blind or low vision. It starts with a few things that are covered by the ADA Standards and the California Building Code (CBC); namely, accessible signage, truncated domes (or detectable warnings), and protruding objects. While the ADA Standards and the CBC include many accommodations for people with mobility disabilities, there really are only a few for those with visual disabilities.

Tactile signs, covered by the ADA Standards at 703 and by the CBC at 11B-703, are perhaps the main item that people think of when they think of accessible design for people who are blind. However, even many of the signs for sale described as “accessible” fall short of standards and may be illegible or just plain wrong. (As in, the raised print text and the braille don’t match. The sign might say “Community room” in print, but “restroom” in braille. You can imagine how this would cause confusion and inconvenience.) Tactile signs may be the one piece of writing in many buildings that a blind person encounters that is accessible to them, so it is important that the signs meet standards for legibility and have correct, matching braille.

Placement of accessible signage also matters. People who are blind are taught where to look for accessible signage (typically to the latch side of a door to the room the sign identifies). Keeping an 18”x18” clear floor space centered on the tactile elements of the sign, outside the swing of the door, ensures that someone who is blind or low vision can get close enough to read the sign by touch or by sight, and that they will not be hit by the swinging door in the process. Informational signs, such as No Smoking signs, are not required to be tactile and have braille, because there is no standard location for them. A blind person would not know where to look for such a sign, so may never even encounter it.

Section 705 (ADA Standards) and 11B-705 (CBC) cover detectable warnings, or truncated domes. Truncated domes have been developed as a “warning to indicate the presence of a vehicular way,” according to the California Access Compliance Advisory Reference Manual (available from the DSA website). “Advisory 11B-247.1.1 General. Detectable warnings are provided for the benefit of persons with visual impairments to indicate transitions to potentially hazardous areas.” This is why you will see them at areas like curb ramps, blended transitions, road crossings, and transit boarding platforms.

Detectable warnings indicate potential hazards in two ways: one is tactile, and one is visual for those with some useful vision. Bright yellow is a color that is easier for people with low vision to see, even at night. Maritza Calderon, a colleague of mine with low vision, states that the bright yellow color helps her know where she may be crossing into a hazardous area. She does not care for the tactile element; she knows, as we do, that the truncated domes can cause difficulty for people using wheelchairs, canes, or crutches, and she worries about slipping on the potentially slick surfaces in the rain.

Frank Welte, a blind colleague, has a different take on the age-old point of contention that is the detectable warning. According to Frank, curbs used to be a perfectly fine indicator that you were about to cross into a dangerous area. When curb cuts were introduced, so were potential hazards to blind and low vision people. The compromise was to introduce detectable warnings. People with mobility disabilities could navigate the world independently because of the curb cuts and people with visual disabilities were still warned of hazardous areas. “What we [blind and low vision people] lose in safety [from curb cuts] is far outweighed by what others gain in mobility accessibility.”

Frank also points out that he is strongly in favor of the use of detectable warnings when they are used appropriately: names as a warning that one is about to cross into a vehicular area. Proper placement of detectable warnings allows them to serve as guideposts and help people who are blind or have low vision stay safe.

Finally, regulations pertaining to protruding objects (Section 307 of the ADA Standards and 11B-307 of CBC) protect blind people from running into things. Cane detectable railings under stairs are one good example of this, keeping blind people from pulling what is referred to in the blindness community as a “head-banger.” Unfortunately, there are still plenty of places that head-bangers occur; think of low hanging tree limbs in a sidewalk area, large sculptures that overlap walking spaces, etc. It is not so easy to duck under or avoid a protruding object when you can’t see it.

With a little thought and foresight, architects and designers can create spaces that go above and beyond the scope of what is covered in the codes. Have you ever thought of incorporating highly contrasting colors into your walls and floors, for instance, to make it easier for someone with low vision to find their path? Or how about using sliding doors on cabinets to prevent head-banger situations? Maybe use a textured wall on one side of a hallway and a smooth wall on the other, so you can more easily give someone directions? (third door on the textured wall) What creative ways can you think of to improve accessibility for people who are blind or low vision?

I am not writing this article to shame CASps into staying silent on topics that are consistent with their certification requirements, as I learn from my CASp colleagues on a daily basis. I am often altered to issues that have not been brought to my attention and I am incredibly grateful for the information. I am writing this article because a lot of times, the CASp does not even realize that they have given legal advice and there are serious consequences for committing this inadvertent mistake.[i] Business and Professions Code § 6125 expressly states, “No person shall practice law in California unless the person is an active licensee of the State Bar.” There are numerous case law decisions on this topic as well. Persons may “not represent the interests of another unless they are active members of the State Bar.”[ii] “It is well settled in California that ‘practicing law’ means more than just appearing in court. The practice of law includes legal advice and counsel.”[iii] “A service performed by one individual for another, even though it be incidental to some other occupation, may entail a difficult question of law which requires a determination by a trained legal mind.”[iv] “Generally speaking, whenever, as incidental to another transaction or calling, a layman, as part of his regular course of conduct, resolves legal questions for another – at the latter’s request and for [compensation] – by giving him advice… he is practicing law… .”[v]

So, what are the consequences for the inadvertent mistake of giving legal advice? Your pocketbook and likely the rescission of any applicable insurance policy. Clients can file a lawsuit for any monetary damages they suffered as a consequence of the unauthorized advice.[vi] For example, a CASp assists the client with a “barrier removal plan” based on the standard “readily achievable barrier removal” definition that remediation should occur if it is “easily accomplishable and able to be carried out without much difficulty or expense,”[vii] however, the CASp failed to review all the other factors that go into that definition. For instance, the “overall financial resources of the facility involved; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such action upon the operation of the facility,” must be considered to make a readily achievable determination.[viii] Other factors required to be taken into consideration are the “overall financial resources of the covered entity; the overall size of the business of  covered entity with respect to the number of its employees; the number, type, and location of its facilities.” [ix] Without the consideration of these additional factors, including others, there cannot be a valid and usable barrier removal plan based on a readily achievable analysis. If the CASp advises the client on this issue, the client may ultimately come back and sue the CASp for the damages it suffered (i.e. statutory penalties and attorneys’ fees and costs paid to Plaintiff in settlement and/or litigation costs), and bring the CASp into a lawsuit for contribution and/or indemnity.

Similarly, if a client tells me that the CASp Inspector determined that remediation is “technically infeasible” it immediately gives me pause. Technical infeasibility is a very high standard to prove. It must be “impossible” to comply with applicable accessibility standards, or in other words, it must comply to the “maximum extent feasible.” [x] Several questions need to be answered before that determination can be made. For example, was an engineering survey done to determine whether the parking stalls could be placed in a certain place? Was an architect or structural engineer consulted to determine if structural walls actually need to be moved? Was a feasibility analysis done to determine whether moving the plumbing in the restroom truly is impossible? The point of our work is to provide access, not to give businesses an excuse to evade compliance. A detailed and complete analysis must be done in order to make the technically infeasible determination, according to the law, which means leaving no stone unturned.

It should also be noted that the client may go to the California State Bar, which is authorized to pursue legal proceedings and/or contact local law enforcement which allows for criminal misdemeanor charges to be brought, which includes a jail time and/or a $1,000.00 fine.[xi] This is a horrible outcome and one which this article is designed to prevent.

The point is, the risk is simply too high in my estimation. I cherish the work that my colleagues do out in the field, and truly deem CASp Inspectors to be indispensable members of my team. This article is simply serves as a heads up that inadvertent mistakes can lead to serious consequences.

Rachelle Taylor Golden is the founder of Golden Law A.P.C., who uses a manual wheelchair. She maintains an active practice in California focusing on proactive public and private entity ADA and Unruh compliance, and litigation defense representing businesses throughout the State. She also regularly handles labor and employment law and litigation before state, federal and state agencies. She is consultant with Civil Justice Association of California, and frequently consults and works with elected official in drafting ADA and Unruh reform. She can be reached at Rachelle@GoldenADADefense.com.

• NEW CASp Guidelines
  
• Access Compliance Advisory Manual and Guide to Public Housing
• CCDA Accessibility Construction Inspection Checklist - New Look!

The articles herein are submitted by a CASp or other interested person for inclusion in the CASI Newsletter for informational purposes only.. The content of any article in the CASI Newsletter contains the opinions of the author, which are not to be taken as the opinion or position of CASI on any issue that involves access for people with disabilities. The articles included in the newsletter are not legal advice nor should they be relied on in forming or taking any legal position regarding issues that involved access for people with disabilities.