Congress passed the Americans with Disabilities Act (ADA) in 1990. The law prohibits discrimination based on disability and requires employers to provide reasonable accommodations to employees with disabilities. Both the ADA and California Building Code establish requirements for accessibility on commercial and public buildings, sites, and facilities.
The Federal ADA regulations require that all new construction for public accommodations comply with the 2010 Americans with Disabilities Act Standards. In addition, the ADA says that a public accommodation has a continuing obligation to remove architectural barriers (barrier removal) to make sure your business is accessible, even when your business is not otherwise contemplating construction. This includes existing barriers at entrances, aisles, bathrooms, and service counters that may have predated the ADA and your ownership of the business. The California's Disabled Persons Act goes further, and makes a violation of the Federal ADA a violation of California civil rights law, and allows people with disabilities to sue a violating business to recover monetary damages.
For information on the City of Oakland compliance with the ADA, please contact the Americans with Disabilities Act (ADA) Programs Division.
The Fair Housing Act and California Fair Employment and Housing Act prohibit local governments from making reasonable accommodations in policies and practices when accommodations are necessary to afford persons with disabilities equal opportunity to use and enjoy a dwelling. Chapter 17.131 of the Oakland Planning Code contains the City of Oakland Reasonable Accommodations Policy and Procedures. The intent of the Chapter 17.131 regulations is to provide flexibility in the application of the Planning Code for individuals with a disability, when flexibility is necessary to eliminate barriers to housing opportunities.
The California Building Code lays out specific ways to make your business accessible, but only requires that business owners make improvements whenever they are doing construction or renovation, typically under a building permit. If you renovate your building, then all of your new construction (the area of remodel) must meet the accessibility standards. In addition, you may be required to update some or all of the building’s main entrance, the primary route to the renovated area, and any bathrooms, drinking fountains, or signs serving the area of remodel accessible (path of travel and other features serving the area of remodel).
If the cost of your construction project is under the state valuation threshold, you are allowed to limit the costs of your improvements outside of the area of remodel to 20% of your construction costs. This valuation threshold changes every year.
Historical buildings are not exempt, although there are special allowances for preservation of historic features. The ADA contains no “grandfathering” provisions, meaning all places of public accommodation are required to comply regardless of when they were built if it is “readily achievable to do so.” Failure to comply leaves you vulnerable to a discrimination claim filed by an individual that is denied access to your business or facility due to access barriers.
When a building permit application is submitted, the Building Bureau will review plans and inspect projects in accordance with the California Building Code, including accessibility requirements. Building Inspectors do not conduct a full review of your business location for disability access deficiencies; they only check to see if the renovations covered by your building permit meet the level of accessibility triggered under the Building Code for that specific project. Oakland's Planning and Building Department has created an Accessibility Checklist to assist applicants.
Compliance with state and federal construction-related accessibility standards ensures that public places are accessible and available to individuals with disabilities. A CASp is a professional who has been certified by the State of California to have specialized knowledge regarding the applicability of accessibility standards. CASp inspection reports prepared according to CRASCA entitle business and facility owners to specific legal benefits, in the event that a construction-related accessibility claim is filed against them.
Whether your business is moving into a newly constructed facility or you are planning an alteration to your current facility, by engaging the services of a Certified Access Specialist (CASp) early in this process you will benefit from the advantages of compliance and under the Construction-Related Accessibility Standards Compliance Act (CRASCA, Civil Code 55.51-55.545), also benefit from legal protections. To find a CASp, visit www.apps2.dgs.ca.gov/DSA/casp/casp_certified_list.aspx.
Here are programs to assist businesses and property owners with financing for their accessibility projects.
Access Credit for Eligible Small Businesses
FEDERAL TAX CREDIT—Internal Revenue Code Section 44 provides a federal tax credit for small businesses that incur expenditures for the purpose of providing access to persons with disabilities. For more information, refer to Internal Revenue Service (IRS) Form 8826: Disabled Access Credit at www.irs.gov.
STATE TAX CREDIT—Revenue and Taxation Code Sections 17053.42 and 23642 provide a state tax credit similar to the federal Disabled Access Credit, with exceptions. For more information, refer to Franchise Tax Board (FTB) Form 3548: Disabled Access Credit for Eligible Small Businesses at www.ftb.ca.gov.
Architectural and Transportation Barrier Removal Deduction
FEDERAL TAX DEDUCTION—Internal Revenue Code Section 190 allows businesses of all sizes to claim an annual deduction for qualified expenses incurred to remove physical, structural and transportation barriers for persons with disabilities. For more information, refer to IRS Publication 535: Business Expenses at www.irs.gov.
California Capital Access Program
STATE FINANCE OPTION—The California Capital Access Program (CalCAP) Americans with Disabilities Act (CalCAP/ADA) financing program assists small businesses with financing the costs to alter or retrofit existing small business facilities to comply with the requirements of the federal ADA. Learn more at www.treasurer.ca.gov/cpcfa/calcap/.
Access Improvement Program (AIP) for Rental Property Owners
The Access Improvement Program (AIP) for Rental Property Owners provides grants for accessibility modifications to rental properties.