ADA Grandfathering Clause: Does Your California Business Qualify?

Sep 5, 2017

By Oz Tumer

As a business attorney in Costa Mesa, California, the first question clients ask me when sued under the American's with Disabilities Act is if they are protected by the "ADA grandfathering clause."

The "grandfather clause" states that the ADA law will protect an existing building or facility from having to comply if the the building was built before it became law in July, 1990. While the ADA has such a clause, it is neither as extensive or as protective. Here's why.

The ADA is a federal law and under the U.S. Constitution, and therefore has jurisdiction over local California laws. City permits and inspectors are concerned with local law, so they will often certify or permit architectural features that are acceptable under local law, but are actually not compliant by the ADA.

One of the most common examples of this is door thresholds that are raised above the sidewalk level several inches. Many older buildings are in this situations and city officials regularly approve make-shift "ramps" that simply bridge the height difference in the shortest distance possible. Under the ADA, such a situation requires a maximum 48" x 60" level landing and a ramp with a maximum 8.33% grade.

In other words, entrepreneurs should keep in mind that a city permit and inspection process gives little to no insight about "accessibility" under the federal rules of the ADA and the ADAAG.

THE BIGGEST ADA GRANDFATHER MISCONCEPTION
If your facility was either compliant or otherwise acceptable when it was built, that you need do nothing about making it accessible under ADA standards now. These are the cases our Costa Mesa law office sees most often.

What we explain to our client is that the ADA's clause does not actually allow this. The ADA allows buildings with that were built before the updated ADA regulations to be grandfathered in as long as the deficiency is not "readily achievable." This means that if it's possible to upgrade your facility so that it is accessible you must do so or end up in our office defending yourself against a lawsuit alleging that your lack of handicapped parking space discriminated against disabled people under the ADA and related state laws.

THE MOST COMMON UPGRADES CONSIDERED "READILY ACHIEVABLE"
Proper signage
Striping your parking lot to provide accessible parking
Leveling out minor slopes
Placing dispensers at the proper height

For the record, parking lot striping and signs are the number one most common complaints in ADA lawsuits. For this reason you should hire a CASp inspector immediately. They are worth the price.

Besides making all "readily achievable" changes, you must comply with the ADA when you make "alterations" to your property. "Alterations," like "readily achievable," is a slippery legal term

Even if your building was built before the ADA became federal law, your businesses can't count on a "grandfather clause" to protect you because there are too many exceptions in the gap between local ordinances and Federal law. Your next step should be to conduct a CASp inspection.

If the cost to make changes is more than you can afford, we can prioritize the changes in a way that will keep you on budget and out of court. This is a complimentary service.  

REFERENCES

ADA UPDATE: A PRIMER FOR SMALL BUSINESS. (2017). from https://www.ada.gov/regs2010/smallbusiness/smallbusprimer2010.htm.

Avoiding ADA Lawsuits. (2017). http://www.facilitiesnet.com/ada/article/Avoiding-ADA-Lawsuits-Facilities-Management-ADA-Feature--10433.

Questions about barrier removal. (2017). from https://www.ada.gov/reachingout/factor.html.

The ADA and City Governments: Common Problems. (2017) https://www.ada.gov/comprob.htm.

 

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