ADA Compliance – We’re grandfathered in or are you

Hi. Welcome to ACR ADA Design and Build where we specialize in ADA construction. Today, we’re going to be debunking another myth. This one is critically important because I hear this on a daily basis. My name is Tony Guichard, I’m the founder and principal with ACR. Today with us we have our team member, Jason, who is our CASp inspector. Jason’s CASp number again is down in the four hundreds, so that means that he’s been doing this for quite a while. In addition to that, Jason is the TSA inspector who inspects concrete ramps and railings, things of that nature for public schools as a TSA inspector which gives him an additional credential. So he’s at the top of the list as your CASp inspector which is why he works well for us. We surround ourselves with the highest quality principals that are out there. So today’s topic is going to be about the myth of grandfathering.

Clients come to us all the time where they’ve heard from their CASp inspector and they’ve heard from their attorneys, “Oh, we’re grandfathered in.” We don’t have to worry about, our building was built in 1940. Well, what I’m finding is that if you read the ADA, ADA says that there is no such thing as grandfathering. And they come in to say, “Well, you know since 1990, the wall was put into place. I think the code took a year to write it or whatever, so it was kind of enforced around ’91 and then the lawsuits have erupted.” And then, so there really isn’t any grandfathering if you pay attention to the intent of the law. The intent is to bring these properties that are open to the public, bring them compliant, get rid of the barriers so that disabled people can navigate in for goods and services that you provide. You know a lot of people think that these lawsuits are frivolous, but a lot of them aren’t just… There is a certain percentage that needs to be ADA compliance so that it is accessible for the disabled persons.

Now, that’s the ADA side. What I’m finding is that some people, or the CASp inspector, or the attorney always wants to do the best job for their client. So they’ll find information, and they’ll state this, “Well, the property was built in 1950 and the property was compliant in 1950.” And you haven’t touched it, no alterations. Then you don’t have to do a thing. And then the attorney or the CASp inspector will say, “Well, you could always argue that.” But there’s the key, how much does it cost to argue? Right? So arguing that particular position could cost you $15,000, and you may not win. You are going to be paying for your attorney fees or you’re going to be paying for the other side’s attorney fees. So they’re more happy that you just keep defending this position and get this thing up to $25,000 to $30,000.

So then you settle, and then all of a sudden you haven’t made any corrections. The next law firm that comes to sue you, they don’t know what your position is. They filed the lawsuit. Once the lawsuit has been filed, then the negotiation starts again. So very rarely are you going to get out of that second lawsuit without paying something. It could be $5,000 to $10,000 defending that position again when you could have made the corrections. But when the CASp inspector or the attorney happens to say you are compliant in 1950, as long as you haven’t touched it, then you don’t need to make this. Well, in my opinion, that’s still a gray area because here’s something to throw at it. Since 1950, have you ever seal coated the parking lot or restrict it? I can guarantee you in 50 or 60 years, that has been done. That triggers an alteration.

So if the property has been altered, you put up a sign, or you’ve done anything on the interior, that triggers current compliance. So the attorneys that are on the plaintiff side filing these lawsuits can very easily go down to building and safety and check the permit process and say, “Oh, gosh. 1995, you put in new glazing for a front storage.” Alteration. I’m not a big fan of claiming that. Again, my opinion, if you’re caught up in a lawsuit, become compliant, we’ll help you with it all the way through and keep you out of these future losses. But you know, this is kind of a gray area between grandfathering and… You know, some of the positions in California that says, “Well, you were locked in and so-and-so date and no alterations.” Where you seeing this realistic out there and feel?

Well, like you said before 1991, there were no accessibility codes. The ADA states in the federal code, a code of regulations, that all businesses, all properties, all title three accommodations, public accommodations must be brought into compliance with the current standards with the… And this was in 1991. So it was brought into compliance with the 1991 standards. Now, you must be brought into compliance with, at minimum, the 2010 ADA standards. But once you trigger an alteration, like you said, now California building code comes into play. So you’re dealing with that. There is no grandfather clause with ADA. If there was, none of these lawsuits would ever happen.

Every building. I can’t say every building, but 90% of the buildings I’ve inspected were built to code. When they were built, they were inspected. They were signed off by a civil engineer, by a city inspector, by everybody that needed to sign them off. It doesn’t mean that they comply with the current accessibility standards and that’s where these lawsuits happen. The lawsuits you’ll face are based on current codes, always. And all of this is more than providing accessibility, it’s become about avoiding lawsuits. That’s what it’s become. And so now you’ve got the serial filers. They know the standards, they know the codes as well as you and I do. And they’re going out there and filing based on the current standards and a grandfather clause argument, it just doesn’t hold up anymore.

I would agree a hundred percent on that. One of the things that I’m seeing with the serial plaintiffs that are filing these lawsuits, is that it used to be back in the old day that the main allegation would be, you don’t have a van accessible parking stall. So now the owners come out and they put in a van accessible parking stall, but the guys who are filing these lawsuits are sharp. I mean, they’re current with the code. So once you fix the exterior, then they’re hitting you up for “Oh, detectable warning dome.” Or they’re hitting you up for a curb ramp or a railing, once you fix those, and you’re signed off, in my opinion. With a CASp re-inspection that says everything is correct, they’re going on the interior. So now these guys are coming up and they’re checking the door pressure on your entry doors.

So now you’ve got the door pressure, you go inside. Do they have an ADA table? Do you have your service counter at the right height? Is your restroom compliant? Now, a lot of clients are being told by some that “Just get rid of your restroom. Put a sign on it that says, “Hey, it’s not accessible.”” The problem with that is when that restroom or that restaurant was originally built, it went through planning department. Planning department states that in order for you to receive your approved set of plans, you have a restroom. So it’s very difficult just to eliminate that restroom when planning department made that a requirement in 1980 or 1970. So you really should go back to planning. And I don’t think you’ll be successful that they’re going to require that that restroom remain. But be very careful where you’re getting your guidance because you may satisfy ADA compliance, but you may be treading on building and safety, California Code, and you may be treading on planning department in your specific area.

I recently had a client that attempted to do that in a gas station. And he was told by his attorney just to put a sign up, employees only. Problem with that in his particular area, there was something new to me is that if a gas station is within a quarter of a mile of a freeway, it has to have a restroom. So he came back with that language after he put that sign on there and found that information. So he went through the effort of remodeling his restroom, it was required by planning department. So make sure that when you’re traveling down, just ADA compliance, that you’re also not treading on planning department, and building and safety because that can throw a whole another red flag. So again, if you’re looking for further clarification on this, feel free to call us, send us an email, and see how quickly we get back to you. Thanks for joining.

Tony (Anthony) Guichard

As the CEO & Founder of ACR Concrete & Asphalt Construction, Inc., Anthony personally holds A, B, C-12, C-8 & C-32 licenses with over 35 years experience in the design and construction industry.