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tv   [untitled]    August 26, 2012 3:00am-3:30am PDT

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>> hi, everybody. my name is carmen chu. why don't we get started. with a marking up with the department of small business -- we have been working with the department of small business. this project started when we heard from neighborhood merchants. unfortunately, they had access issues, visibility access issues.
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we have been working closely with many of our partners year today to educate about these -- many of our partners year today to educate about these issues. also in terms of board guidance. i want to thank all of you for coming. many of you may have assistance. i know many merchants could not be here. please do it share this information with other merchants in the area. we have virginia from the office of small business. we have roger from the bar association. no carla johnson from the office of disability. -- we have carla johnson from the office of disability. i want to especially it acknowledge my colleague to help
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us get the resources and brought legal expertise to the table. i do not want to take too much of your time. thank you for coming. >> thank you, supervisor chu. i want to express my admiration for a supervisor chu's commitment to you. so, from our office, what we heard, many small businesses were receiving lawsuits regarding it the ada. tonight we will hear about the legal requirements, what has been in place. any small businesses that nderst informed as far as their obligations for the ada, there
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are the mechanisms to provide that information to you. so, we are tasked with providing the information. there have been about 300 small businesses that have received the lawsuits. knee individuals who use this mechanism and come up -- the individual to use this mechanism. while it is important to have ada access, but we want you to understand there are individuals out there taking a look at your vulnerability. we have a packet of information for you tonight. we have it in english and chinese. we have a quick summary of the laws. the ada, calif. building code,
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the civil rights, and our experts here will elaborate. we also have a list of certified caps at work in san francisco for you. carla johnson with the mayor's office of disability has created a really good it died of out to interview your experts to make sure you are getting the best quality product for you. been next -- the money you pay for the inspection you can take as a tax deduction. any money that if you have taken can be applied as a tax deduction. this can be done on an annual basis.
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next, the opportunity, and a fund -- opportunity loan fund, providing for small businesses to pay for the inspection or to make improvements needed. to do it before you receive the lawsuit. and lastly, we of the bar association and their resources. they're providing their legal service for you. this last thing i am going to share with you in terms of what we have seen in our office is that with the individuals, that does not necessarily mean an individual will follow up with a lawsuit. what we've seen in our office is the individual's will send you a
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letter and say there were compile -- compliance issues. where people get in trouble is they ignore the letter. we need to make sure it that your pro-active and responsive. when a business receives a letter, they need to contact our office. the merchants of been very proactive -- have been very pro- active. the businesses that have received a letter and passed an inspection after receiving the letter have staved off a lawsuit. the cap inspection is a very good risk management tool.
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often it is not as durable as you may think it to be. our office is there for you as our resources. we are able to provide our services, follow-up questions in english, spanish, cantonese, and mandarin. and then -- and then, roger, you will -- >> yes. i am an attorney in private practice. the laws in this area are strict compliance laws, and they are
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very specific. the federal law since 1990 indicates issues from 1998. all businesses, such as a grocery store, a dentist's office, restaurants, a doctor's office, virtually anything that a member of the public comes into the -- comes into needs to be a barrier-free. we will go over what barriers are. every public accommodation needs to be wheelchair-accessible. there are also other other forf disability. most of the issues we are hearing about are wheelchair accessibility issues. there is a small group of private individuals who are wheelchair-down that go around the city and they look at small
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businesses. and i dare say anybody in small restaurants have some accessibility issues. it is another attempt at making your building wheelchair accessible. i am not sure which of you may be merchants and which it may be landlords. the law applies to both. and that means you were 100% liable for any barriers to access and any damages that may be associated with those barriers. there are ways you can defend yourself.
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with your landlord or at senate -- or a tenant, this can avoid a lot of problems later on. the inspections offer a limited attempt at bringing a civil action for damages. it does not affect the ability to bring damage claims under the symbol laws. however, most lawyers -- they will not pursue the case. so, oftentimes, it works it to stop the lawsuit before it starts if you do that inspection. they are not particularly expensive. so, it is something someone would want to do. you will get a tax credit.
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if you need to make changes in the structure of your premises, there are also tax credits for that. most of these cases start with a letter. a demand letter. that is usually signed not by a lawyer, but by it up plaintive. the plaintiff may not be a professional plaintiff. that does not make any difference. the defense has been tried in court. is a civil rights statute. -- it is a civil rights statute. they can be a perfectly legitimate plaintiffs to bring a lawsuit, and there are a number of people who belong to disability organizations that actually, that is what their
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livelihood is, bringing these lawsuits. the gentleman over here, who was also a lawyer knows of at least one case involving two lawsuits. they started all neighborhoods. the target places like san francisco because this is an old city with old buildings, virtually none of which comply. we only have new construction that would be billed to 1988 compliance standards, usually. whatever kind of business you have, the building part does not enforce ada compliance. you have your architect look at the ada if you are going to make a major revision anyway.
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is very expensive to do that. the demand letter is a requirment for the state -- is a requirement for the state laws to be brought. for civil rights cases, you are expected to know the law and be in compliance. they do not make a demand under federal law saying they should ask you for damages. and the damages could be substantial. the damages are based on the number of barriers encountered by the person when they're going to inspect the premises. these people will come and visit your business barack, three, or four times. they will sit at the counter if you have a counter. they will sit at a table.
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that are well aware of what the legal requirements are of the height of the table and the length of the legs, whether the bathroom is compliance, whether there is appropriate sign it. the first barrier is access to the premises itself. adding is? . -- adding steps. having a ramp that is too steep is an access issue. there are ways to deal with those. having a power door or something of that nature. of power door -- you have seen those with the wheelchair symbol on it. it will open the door. the person on the wheelchair does not have to try to wrestle with the door to get in.
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it is much more immediate access if you of something like that. that is the first barrier to someone, if they are entering a business premises. the next issue is usually in bathrooms. a lot * -- a lot of times, but is difficult to comply with depending on the size of the establishment. to make a wheelchair-accessible bathroom, it takes a lot more space than a regular bathroom. so, it is a problem oftentimes with small businesses. especially if you have to do two of them. and it cost about $15,000 to $25,000 to build a wheelchair-
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accessible bathroom. for restaurants, bars, it's a truck, there is an issue on the height of the counters -- for restaurants, bars, at such wreck, there is an issue on the height of the counters. that keller would make the person wheeling up on in the chair not be able to be eye level. you cannot have it like that. you have to have a portion of the counter down level. it is 34 inches. i daresay most of the counters will not be that size if you have a business like that. however it may be. that is not what the normal
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business layout is. tables. there is a percentage based on the number of seats that have to be wheelchair-a accessible. they are required to be appropriately designated with a placard. you can get that any press run supply store. in place with commercial interiors can furnish you with those placards. you also have to have a sign out front that your business is wheelchair accessible. and various signing issues. each one of those things you do not have if someone must use to you is a separate claim. the statutory damages are $4,000. a person can come back three times and see three different wheelchair-accessibility issues, that is nine claims.
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the attorneys' fees are only recoverable -- only the plaintiff has the ability to get the attorneys' fees. if you fight a lawsuit and win, you do not get attorneys' fees. is a one-sided statute. the policy is to promote access. one of the issues for a merchant to look at is your least. virtually every commercial lease, what ever the business maybe come up switches to the tenants all responsibility for code compliance. what that means is coming you have to indemnify the landlord on the insurance or the least, or any money that the landlord may have a. clearly, the landlord -- the
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lease does not stop the plaintiff from suing the landlord. therefore, the attorney for the plaintiff is going to target the person they are getting the money from. it does not let the tenant of the hot. the tenants in their lease is contractually responsible to the landlord. there are ways that can be dealt with between the landlord and the tenant. i have represented landlords. i have represented tenants. at some point, i represented both because they have a common interest even in that. obviously, they both have to make the space accessible either now or later, so it is best that they work together if they can. and work together to save us -- to hire a single lawyer.
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they can make repairs or what ever is in their agreement. sometimes, when the tenant is the small business and does not have much cash flow, one way to do is to renegotiate the lease, where the cost is amortized over a longer period time. it is another way to spread the payments back to the less financially available person. would you do if you get one of these notices? if you have not had your property inspected already, or if you do not do it following this program -- which i recommend you do -- you should have an inspection by an architect who is familiar with ada issues. we call all of these laws ada, but really ada is one aspect of the federal laws.
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there are five or six statutes, depending on the specifics of the case. there are a series of overlapping laws, all of which require essentially the same thing. did different measures of damages and other things. the lawyers will sue you on these various labels. they all really say the same thing. the purpose of that letter is to establish damages. the first thing to do when you get that letter is to have your place it inspected. if you have done so, let the person know that you have had the place inspected. that makes the case go away. certainly, it lessens the likelihood you were going to be sued. if you need more time, talk to
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the tenants or talk to the person suing you, sending you the letter. get some additional time. they do not have elyria. what you need to do is find out what your rights are, and if you need to make repairs or remediations, do it because you are going to have to do it sometime during the course of litigation if there is a problem with access to your premises, so long as the renovations are readily achievable. if it does not so much cost that it is so excess of for the amount of revenue being generated for your business, you have to make -- the way to look at it is let's say it takes $50,000 to renovate or remedy a the property for business.
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if your business is generating $100,000 a year in revenues, you clearly are not going to come up with $50,000 to make the changes, at least not in year one. but some of it you can do in year one. that percentage is not in a fixed amount. that usually gets 15% of your gross revenues could be assessed as being available to you to make these repairs. they will aggregate that over time, so if you cannot make all your repairs in year one, you can make some, but it may take you three or four years before you have to make the changes, but there is no defense to making the changes. even if it is a historical building. that is not a defense. when i get involved, it is
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because 90% of the time, the tenant is the only one who gets the notice, though the notice is addressed both to the tenant and landlord. next thing you see, you are handed a piece of paper by some stranger, and it is a lawsuit. then you need to find a lawyer. probably 90% of these cases are in federal court. it becomes much more costly to get a lawyer involved. most lawyers charged somewhere between $5,000 or $10,000 to get involved in some of these cases. you need to file a formal answer in the court. you will be in a mediation process, which means you will meet with people appointed by the court to try to resolve this issue. the revolution is just what i said. it is major repairs if they are
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appropriate, and not all repairs are in demand. and, to settle the damaged portion of the case. in my experience, the damages claimed usually run somewhere between $15,000 or $5,000, and attorneys fees generally run between $10,000 or $15,000. my colleague over year has learned that the attorneys fees are $4,000, and they have not got past mediation. there is not even discovery until you finish mediation.
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ultimately, if you do not resolve these cases, it is a jury trial. you're looking at the fees and costs that will be substantially in excess to $100,000. it is much better to look at your property today, have it inspected, and make the changes because this is a civil rights statute. it is the same thing as discrimination based on race, and it is treated the same way in the courts. >> i heard the previous speaker make some good points about be a pro are the -- proactive about getting a task inspector before you get sued. i am f. task inspector. if you have to cut -- heard the term thrown around, inspection
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created by our state senators, and it is really great information out there that i want to encourage everyone. i will not be able to go into extensive details, but i will be able to tell you a little bit of what is involved. the difference is in the california building code. i can also give you tips on how to choose and specter appeared first of all, the program has an inspector's knowledge of the california building code, and the reason why that is so important is because you have to comply with both. the california billing code is enforced when you get a building permit, and forced by the local building requirements. it says all new buildings have to be totally accessible. it also says that new buildings
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when you do an alteration course have to be accessible when you do a project. there's a big difference between a big project and a little project. a big project is going to be not as accessible as a new building, but a smaller project actually has a smaller level of access required in the california building code. you might think that because you got a building permit that that means that everything is good and you are complying with the ada, but it is actually the difference in the building code because its is even if you have an existing building and have not done any improvements to that building, that you still have a continuing obligation to be going through your business and building and taking constructive steps to remove the barriers.
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the ada gives us some guidance on that. readily achievable says it can be done quickly and easily without a whole lot of steps. feasible means that it may require a lot more money, a lot more alteration to get that done. under the ada, you need to be surveying your property and putting together both a short- term plan and a long-term plan. the short term plan is going to be the readily achievable solution. the long-term plan could take 20 years. i do not know. your business might not be making huge profits. you may need to be saving money for the long term.