ADA and historic buildings

By David Kelly
Contributed

Don’t think your business is exempt from Americans With Disabilities Act (ADA) laws because you have an old or historic building. In 2019, 3,606 complaints/pre-litigation letters were served on businesses. That is down from 4,320 in 2018. Riverside County is among the counties receiving the highest amount. The majority of these complaints were accompanied by large fines and lawsuits.

The majority of the Idyllwild businesses fall under Readily Achievable Barrier Removal. This applies to all businesses that are called public accommodations, such as a merchant or restaurant, because they serve the public. Businesses that are not open to the public must still comply with the ADA when their facility is altered or renovated.

Historical buildings are required to comply with the ADA, per California Historical Building Code (CHBC) Section 8-602, unless strict compliance will threaten or destroy its historical significance or character-defining features. A business no longer can claim unreasonable hardship for not complying with the code.

If a person files suit against your business under the Unruh Civil Rights Act, you can be liable for statutory damages for each and every offense for a maximum of three times the amount of damage, but no less than $4,000, and the only thing the plaintiff can recover is attorney’s fees.

However, Civil Code 55.56 provides for statutory damages of $4,000 if the plaintiff is denied full and equal access to a place of public accommodation on a particular occasion or visit, not $4,000 per each violation, as previously allowed under the Unruh Civil Rights Act, Civil Code 52(a).

Your best defense against a lawsuit is to comply with the ADA. There is no grandfather clause in the ADA, only what is called “Safe Harbor,” which means under specific situations, you don’t have to modify your facility to meet requirements unless you undertake renovations or additions.

There is some protection for small businesses who have an inspection under the Certified Access Specialist program. The benefit of an inspection for a qualified small business is: You can request an early evaluation conference, receive a 90-day stay-of-court proceeding and receive reduced minimum statutory damages to $1,000 from $4,000, if you are found in violation of a Construction Related Accessibility Requirement and correct the violation within 60 days.

The facility inspected does not need to comply with all applicable construction-related accessibility standards in order for you to receive legal benefits, but the property must be inspected by a CASp before a claim is filed.

David Kelly is a civil professional engineer and a certified construction manager.