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American Coffee Shop Closes after 3rd ADA Lawsuit

Rick18071 said:
I don't know how local governments can be sued. We didn't even adopt any codes until 2004 here. There where no accessible inspections before that and most places did't have any kind of building inspector.
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Yes, and here is a current lawsuit against the city of LA for failing to provide accessible housing. On the surface, it sounds like LA falsified its records. Dig deeper, and the backstory is that the various architecture firms that worked on the projects certified compliance to the city's redevelopment agency, but the architects were too focused on just CBC 11A (FHA), and they forgot about UFAS. The city relied on these compliance statements in their reporting to HUD.

I should add: in this example, the city was a partial funder of the housing projects, so they were not being sued in the role of plan check / building inspection. In other words, the local government's assistance in providing affordable housing funds is what made them liable for the omissions of the design professionals. No good deed goes unpunished.
 
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"The recent Ninth Circuit case of Fortyune v. City of Lomita establishes that a plaintiff may sue a city under Title II of the ADA (the Title applicable to public entities) for failure to provide accessible on-street parking, even in the absence of regulatory design specifications. In other words, the defendant City had argued that, to sue under the ADA, there has to be a violation of existing specifications. The court disagreed and held that under the ADA, cities, including small towns, have an affirmative duty to make on-street parking accessible, even if no regulatory design specifications exist."

https://www.wzllp.com/suing-cities-on-street-parking-design-ada/

Good luck figuring out how to redesign your 1940's era street's parallel parking stalls to add an 8' loading/unloading aisle, maintaining a 2% slope on that former gutter location.
 
The whole ADA thing will expand until there is nothing that isn't covered under a panoply of excessive laws. Do-gooders went from a benign desire to help to a burdensome crusade. Look at the growth of protected classes. People that can't figure out what they are is another flower needing water. Now there is a new one here in California. I heard about it yesterday. My first reaction was "That can't be true". I thought the same with many of the other classes but this one might tip the balance. It's hair....you can not discriminate based on hair style. Hairdressers are rejoicing .....mostly in West Hollywood.....that's where this protected class stuff germinated.
 
This is a pic of a page in a manual I like because it lists both the federal ADA and CA guidelines and explains the most restrictive. Even though Fed ADA does not have a 20% rule as CA allows as ADAGUY pointed out, it does talk about readily achievable including the verbiage "modest measures, easily accomplishable and burdensome expense". If you read the top line, and the bottom underlined verbiage, it starts to go into barrier removal and readily achievable. The ADA did remove "loss of profit" from it's criteria of readily achievable. However, the fact that there is verbiage about extensive restructuring and burdensome expense leads me to believe it is not black and white and there are exceptions. Certainly the owner can restripe his parking space and add a power assisted entry door. Enlarging & reconfiguring a bathroom is not as easy as some think. Construction cost in SF is $500/ sq . ft. I can understand this putting him out of business.
 

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Rick18071 said:
I don't know how local governments can be sued. We didn't even adopt any codes until 2004 here. There where no accessible inspections before that and most places did't have any kind of building inspector.
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Oh, they are more than you realize and the muni's lose too, sometimes using their insurance carrier to settle before it goes to court. Don't think that you are immune as an inspector and, if you work for a third-party, you are a target. Trust me. This can be not just for missing something important on an inspection but it can be from requiring something that is not a code and overstepping your boundaries.
 
Robert said:
This is a pic of a page in a manual I like because it lists both the federal ADA and CA guidelines and explains the most restrictive. Even though Fed ADA does not have a 20% rule as CA allows as ADAGUY pointed out, it does talk about readily achievable including the verbiage "modest measures, easily accomplishable and burdensome expense". If you read the top line, and the bottom underlined verbiage, it starts to go into barrier removal and readily achievable. The ADA did remove "loss of profit" from it's criteria of readily achievable. However, the fact that there is verbiage about extensive restructuring and burdensome expense leads me to believe it is not black and white and there are exceptions. Certainly the owner can restripe his parking space and add a power assisted entry door. Enlarging & reconfiguring a bathroom is not as easy as some think. Construction cost in SF is $500/ sq . ft. I can understand this putting him out of business.
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Just remember Robert, the interpretations in CalDag are not Code. It is a Guide that Mike
Gibbens writes and edits. It is his interpretations, not the Building Official.
Don't get me wrong, he is "the go to expert", but it is not always the code.



In my opinion the FREE 2016 California Access Compliance Advisory Reference Manual
State Of California Department Of General Services Division of the State Architect
"Holds more weight on interpretations than does Gibbens" !

https://www.documents.dgs.ca.gov/dsa/pubs/2016CBC_Advisory_Manual.pdf
 
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You are so right MH. Gibbons created a cottage industry for defense counsel with his book.
Give him credit for "cashing" in early on but not for his interpretations.
 
I posted the page not because of Gibbens opinions/interpretations but because of the first paragraph which is straight from ADA section 36.104 "readily achievable means easily accomplishable and able to be carried out without much difficulty or expense". If the bathroom addition/remodel put him out of business, then it obviously was not "readily achievable" per the ADA definition. Business owners need to be educated about their rights too, so they can fight some of these.
 
jar546 said:
Oh, they are more than you realize and the muni's lose too, sometimes using their insurance carrier to settle before it goes to court. Don't think that you are immune as an inspector and, if you work for a third-party, you are a target. Trust me. This can be not just for missing something important on an inspection but it can be from requiring something that is not a code and overstepping your boundaries.
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So you are saying that i can be sued for a private building that was built when the state had only minimum safety codes and the township did not have any codes at all or any inspectors, that isn't accessible and did not ask or give permission for an inspector to come into the private property?
 
"That" would be a "Yes"! No one said inspectors were the ADA cops. Feds say it is for those with disabilities to make the call.
No "grandfathering", Readily achievable requires a case by case determination; unfortunately, like French law you may be guilty until you prove your innocence and that may cost you to prove it.
Burger stand in Sacramento had a similar issue many years ago. He leased the building so chose to move rather than invest in improvements. Feds require barrier removal, Unrhu in CA does not (only payment of a bounty) - that is what draws out "opportunists/" to sue. Coffee shop "chose" not to fight it, his choice.
 
Rick18071 said:
So you are saying that i can be sued for a private building that was built when the state had only minimum safety codes and the township did not have any codes at all or any inspectors, that isn't accessible and did not ask or give permission for an inspector to come into the private property?
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ADAguy said:
"That" would be a "Yes"! No one said inspectors were the ADA cops. Feds say it is for those with disabilities to make the call.
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Rick18071, can you clarify, are you asking the question as if you were (a) the inspector, or (b) the property owner?

It sounds to me like ADAguy is aswering you as if you were the property owner.
 
Inspectors only respond to complaints of non-code compliance, they don't enforce the ADA but if the code is not complied with and the building had been altered post ADA and the local code for the alterations met or exceeded the ADA then that might give cause for an inspector/ (or code enforcement officer) to have inspected the facility. It has not been shared as to the age of the facility and what the specific barriers allegedly encountered were.
 
Rick18071 said:
I don't know how local governments can be sued. We didn't even adopt any codes until 2004 here. There where no accessible inspections before that and most places did't have any kind of building inspector.
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That is an incorrect statement. Although PA adopted a statewide code in 2004 that covered residential and commercial, PA enforced the 1927 Fire & Panic Act on commercial properties and then later, PA Labor & Industry then adopted and enforced ADA standards. It wasn't until 2004 that certified inspectors outside of L&I began enforcing the new adopted ANSI A117.1 in 2004.
 
This probably is (and probably has been) a topic for another thread, but my understanding is that a person acting solely in the role of AHJ / building official (or plan checker, or city construction inspector, etc.) cannot be sued for the failure of an owner or design professional or contractor to comply with ADA, or for that matter with any building code or related codes. This is even true if said AHJ screwed up and failed to identify code deficiencies.
Exceptions could be criminal negligence, accepting bribes to "look the other way", etc.

Of course, if said AHJ was wearing two hats - for example, was the property owner as well as the building official, then they could be sued as the owner. This would include a person acting as the Public works director on a city-owned property, such as a public street.
 
If I have to be sued because I did not enforce ADA - I would hope that all of the legislators, the Judges,, all DOJ persons should be sued at the same time.

I spend a lot of time showing others where to get the ADA Guidelines so that they can make their determinations.

I have yet to read how the ADA takes into account hair style or color! It is getting way out of hand.
 
mtlogcabin said:
Maybe not under Federal ADA laws but they can be sued under the Fair Housing accessibility rules.
Basically the lawsuit was the building department was not informing builders and owners of the possibility of additional accessibility requirements by other agencies that they may need to adhere to.

http://www.montanafairhousing.org/newsletters_press/2003/nov03.pdf
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Wasn't there a slew of FHA cases in NW Montana like this? If i recall correctly, they lawsuits were not because a city building official allowed a private owner to violate FHA. Rather, they were lawsuits against a city because the city's own zoning ordinances were deemed discriminatory. Basically, the city would not allow assisted living facilities in certain zones where other types of residential uses were otherwise allowed.
I've also seen lawsuits of a similar nature where (for example) a front yard setback code made a homeowner unable to construct a ramp with handrails to their front door.
 
I have been here since 2002 and am not aware of the type of lawsuits you describe. We have always allowed ramps to encroach into setbacks for existing buildings, res and comm but not newly developed lots.
 
mtlogcabin said:
I have been here since 2002 and am not aware of the type of lawsuits you describe. We have always allowed ramps to encroach into setbacks for existing buildings, res and comm but not newly developed lots.
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Glad to hear it's not been a problem.
Main point of previous post was: when a city gets sued under ADA or FHA, it's not because some 3rd party violated ADA/FHA within the city limits; it's because (1) the city's own property, or the city's own (2) ordinances or (3) practices, violated ADA/FHA. Or (4) the city channeled funds to, or was a financial partner with, a 3rd party in a development that violated ADA/FHA/UFAS.
 
That wheelchair-bound attorney who has filed so many ADA suits has been charged with tax evasion:

“Yaaaaay,” said Steven Johnson, who runs a costume and magic shop in Carmichael with his mother and was sued in 2005 over a lack of ADA-compliant parking. “It isn’t enough. The penalties for tax evasion are well and good, but he really should be caught up for his abuse of the ADA laws.”

Across Northern California, Scott Johnson has filed thousands of lawsuits alleging ADA violations, collecting settlements and, sometimes, driving business owners to close their doors.

Now, Johnson is facing charges that he filed false tax returns on income received from such lawsuits, and he made a brief appearance in federal court Wednesday afternoon where his attorney, Malcolm Segal, entered a not guilty plea on his behalf.

Murphy said the business served numerous other disabled patrons without problems, but could not absorb the costs of the repairs that would be needed or the cost of settling, so the business closed without paying Johnson last summer.

“I’ve got nothing against people that are in wheelchairs,” Murphy said. “But my first reaction (after learning of the indictment) is that he’s finally getting his due for the damage he’s done to people in this town.¹
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¹ https://www.eastbaytimes.com/2019/0...e-serial-ada-filer-faces-tax-evasion-charges/
 
mtlogcabin said:
ADA is different in it is a civil rights law.
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No, its not a law, its an act. The ADA does not havd any enforcement or punative provisions, all those are handles by civil law suits. And what everyone is building toward ... ADAAG ... the AG is accessibility guidelines. The states and in some cases cities then incorporate those guidelihes into their codes.

The effect is the same, but the ADA is not wielding the stick, just the carrot.
 
e hilton said:
No, its not a law, its an act. The ADA does not havd any enforcement or punative provisions, all those are handles by civil law suits. And what everyone is building toward ... ADAAG ... the AG is accessibility guidelines. The states and in some cases cities then incorporate those guidelihes into their codes.

The effect is the same, but the ADA is not wielding the stick, just the carrot.
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An act officially becomes law when a legislature votes for a bill, Congress voted on it, President Bush Signed it, It is LAW, .


Also just so you know The ADAAG were replaced in 2010 with the 2010 ADASAD.
 
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