ADA (American Disabilities Act) compliance is an important component in our society and since there are a lot of older buildings in San Francisco disabled access upgrades are often necessary. Opening a business does not necessarily trigger doing the upgrades. Doing permitted construction in the space is what triggers the upgrades and the amount of upgrades (20% -vs.- 100%) the owner is responsible for.
Do not assume that if you move into a space "as is" and are not doing any construction that you are exempt from meeting ADA compliance. Look into it, ask questions and protect yourself from potential lawsuits.
Here is some basic information about ADA compliance that you should understand.
The 20% rule: In short, if your construction costs excluding disabled access upgrades are below $195,358.00 you must provide disabled access upgrades up to only 20% of the cost of construction. If your construction costs are above that number you are required to provide 100% of disabled access upgrades to your project. The amount of $195,358.00 only applies to construction that receives permits in 2023. The amount may change every year. Check sfdbi.org/forms-handouts for the disabled access compliance checklist to see if the amount has been updated. All new construction shall be ADA compliant.
Evaluating construction costs: The cost of construction is something the Department of Building Inspection can evaluate and revise to meet the Marshall & Swift Construction Cost Index based on the square footage of your project. if they think your estimate is too low they will use their this method to come up with the cost of construction for your project. We have seen documentation at the Department of Building Inspection that lists commercial construction to be valued at $218.00/square foot. This number is subject to change.
Order of priority: Disabled access upgrades are to be completed in order of priority which are based on California Building Code Section 1134B.2.1 Ex1. Basically the order makes sense. Your entrance is the first priority, the route is the second priority, restrooms are third and then it goes on to pay phones, drinking fountains, signage, visual alarms, parking, paths from parking and then showers.
Unreasonable Hardship: You may file for an unreasonable hardship if there are areas that will not be in compliance with the disabled access laws due to financial, physical and/or other constraints that create unreasonable cost in proportion to the scope and estimated construction cost of your project.
Technical Infeasibility: You may file for a technical infeasibility if for example you would have to remove or alter a load bearing member that is an essential part of the structural frame or if there are physical or site constraints. Of course, they ask that you meet ADA compliance to the maximum extent feasible.
Upgrades are already completed: If your space is already completely ADA compliant you are not obligated to spend any portion of your construction costs on disabled access upgrades but you still need to complete a form and include it in the permit documents.
Risk of being sued by a person with disabilities: Many business owners are rightfully concerned that if they meet the 20% rule they are still left wide open for law suits for the portions of their space that are not ADA compliant. In an effort to help small businesses San Francisco Supervisors led by Carmen Chu launched a pilot program in 2012 to stop predatory ADA lawsuits and to educate business owners about what their responsibilities are and how they can be protected from lawsuits that may be frivolous. In addition, the state started a program involving Certified Access Specialists (CASp) who can inspect your facility and write a report that will provide you with a schedule of improvements towards compliance before a construction-related claim is filed against you. A CASp can provide services that offer you “qualified defendant” status in a construction-related access lawsuit once you’ve received your inspection and report. That is a good thing.
Please, in any case ask a lot of questions of your designers, architects and building officials so that you completely understand your risks and responsibilities.