The Law

Triggering of Accessibility Upgrades by Michael Blahy Former chief building inspector for the City of San Francisco learned the hard way that not all older building are required to be retrofitted to make them accessible to the disabled. Brad Metzger (Metzger ) and his former partner formed Lowbrau, LLC (Lowbrau) and bought the Rio Nido Roadhouse (Roadhouse) in 2007. In October, that year Lowbrau applied for and granted a building permit to remodel the kitchen, on condition that they make some disability access upgrades. Lowbrau asked for a hardship exception for the disability access upgrades. The kitchen remodel was completed. On October 18, 2012, the Roadhouse was showing both, the San Francisco 49ers and the San Francisco Giants games. It was a busy night. Richard Skaff (Skaff) too, wanted to enjoy the Roadhouse that evening. As a result of a 1978 accident, Skaff became disabled and has required a wheelchair. He entered a parking lot to the south of the Roadhouse and found a disabled parking sign, but the spot was occupied by a disabled veteran. He could not find an alternate parking spot large enough to accommodate his full-sized van with a wheelchair lift, so he returned home. As chief building inspector and Americans with Disabilities Act coordinator for the City of San Francisco, Skaff, had experience enforcing California accessibility laws. He called the Roadhouse and left a message about his failed visit. The call was returned by Metzger, who after some discussion suggested that Skaff contact the County. Metzger hired a certified accessibility specialist, Fred Lustenberger, who found deficiencies with accessible parking, ramp, gate kick plates, sidewalk and public washrooms. Metzger received several letters from Skaff’s attorneys demanding improvements to access concerns. Metzger explained that a specialist has been retained and some of the concerns will be remedied. A June 26, 2013 letter threatened a law suit if the Roadhouse wasn’t compliant with state and federal accessibility requirements within six months. In August 2013, a suit was filed alleging, alterations to an existing facility that triggered California Building Code disability access requirements violating section 19955; and Skaff’s “inability to patronize the Roadhouse because of access barriers in the South Lot and entrance” violating the Unruh Act and the Americans with Disabilities Act (ADA). Lowbrau countered alleging “attempted extortion and unfair business practices under Business and Professions Code section 17200”. Lowbrau continued with it’s plans to improve access upgrades to the Roadhouse, completing them in 2016 and spending $27,853. The 12 day trial began in January 2017. Skaff hired disability access expert Karl Danz (Danz) “to evaluate the Roadhouse under the new construction standard only ”. Danz’s August 2014 inspection showed “various access deficiencies”. His inspection of September 2014 reported “four access remediation projects underway”. In August 2016, he noted “virtually all of the access concerns he previously observed had been remediated to current state and federal standards”. Lowbrau requested that since “all the identified barriers to access at the Roadhouse had been remediated before the start of trial”, the injunctive relief claim be dismissed. Skaff’s counsel argued that all the remediation was due to his advocacy and if dismissed, it “would preclude plaintiff’s argument that he would be entitled to attorney fees as the prevailing party”. Lowbrau’s motion was denied with “I’m not going to invite myself into some sort of appellate issue on the issue of attorney’s fees, so I’m going to deny the motion.” Lowbrau had their own disability access expert, Kim Robert Blackseth (Blackseth), who testified that it is important to research a property’s construction history and building permit history to determine which access standards apply in a given case. He testified that under the ADA, the “alteration standard” did not apply since the 2007 kitchen remodel and 2014 washroom upgrade did not trigger any other access upgrades. Only “readily achievable barrier removal standard” applied. In Blackseth’s opinion, Danz’s report and testimony revealed a notable lack of understanding about the access standards and how to analyze them. Significantly, Danz did not identify the construction or alteration history of the Roadhouse. Instead, he evaluated the Roadhouse under the standards that apply to new construction only. New construction standards have no application to existing facilities, nor do they govern a facility’s ongoing obligation to remove existing barriers. Danz’s report was therefore unreliable and confusing. In June 2017, a decision was made in favour of Skaff on his section 19955 claim saying: “[It] would have entitled him to obtain injunctive relief for all non-compliant conditions at the Rio Nido Roadhouse relative to his disability.” The court observed that since all the barriers to wheelchair access identified in his complaint had been remediated, plaintiff “ha[d] already obtained all the injunctive relief he sought in his prelitigation correspondences and in his complaint.” The court therefore ruled that plaintiff was entitled to recover his statutory costs as the prevailing party under Code of Civil Procedure section 1032. Plaintiff was also authorized to file a motion for attorney fees. In July 2017, arguing that section 19955 only applies to new construction or triggering alterations, and neither applied to the Roadhouse, two motions were filed by Lowbrau, 1) to vacate the judgment, 2) for new trial. Both motions were denied. In December 2017, Skaff was awarded $192,910 in attorney fees and $39,762.50 in costs. Lowbrau appealed saying that the trial court erred in entering judgment and awarding attorney fees and costs, because Skaff failed to prove any entitlement to relief under section 19955. From the Courts of Appeal of the State of California discussion: Section 19955 “establishes specific standards of compliance in the State Building Standards Code” . . . “for accessibility to sites, facilities, buildings, and elements by individuals with disabilities.” . . .These requirements expressly apply to “[a]ll areas of newly designed and newly constructed buildings and facilities and altered portions of existing buildings and facilities . . .” Importantly, section 19955 does not contain an ongoing obligation for existing facilities to remediate barriers to access. The trial court found that plaintiff’s claim under section 19955 “would have entitled him to obtain injunctive relief for all non-compliant conditions at the Rio Nido Roadhouse relative to his disability.” No evidence in the record supports this determination . . . Like all public accommodations, the Roadhouse has an ongoing obligation under the ADA to remove readily achievable barriers to access. The record confirms that the Roadhouse was not ADA compliant, and it remediated access barriers from September 2014 through 2016. Plaintiff’s injunctive relief claim, however, was premised on violation of section 19955, not the ADA. As discussed above, Lowbrau was under no legal obligation to make accessibility improvements under section 19955 unless the Roadhouse had undergone a triggering alteration. No evidence of any such alteration was offered by plaintiff at trial . . . Because there was no evidence presented of any alteration at the Roadhouse that triggered compliance with section 19955’s accessibility mandates, judgment entered on plaintiff’s behalf has no basis in the record and must be reversed. As for the awarding of attorney fees and costs: The catalyst theory requires a causal connection between the plaintiff’s lawsuit and the relief obtained. . . . Under this theory, “an award of attorney fees may be appropriate where ‘plaintiffs’ lawsuit was a catalyst motivating defendants to provide the primary relief sought . . ..’ The court recognized, however, the potential for abuse because allowing recovery under the catalyst theory could “encourage nuisance suits by unscrupulous attorneys hoping to obtain fees without having the merits of their suit adjudicated.” To guard against such abuse, the court held that a plaintiff must show: that there was a causal connection between the lawsuit and the relief obtained that the suit had sufficient legal merit that the plaintiff made a reasonable attempt to “to settle the matter short of litigation.” [W]e are not convinced that the catalyst theory should even apply here. The catalyst theory is generally not invoked in cases where the merits have been fully litigated to a final judgment . . . the merits of plaintiff’s claims were fully adjudicated after a 12-day bench trial in which the trial court heard witness testimony and considered voluminous exhibits . . . No such judicial efficiency was achieved here as plaintiff’s section 19955 claim was thoroughly litigated to a final judgment. Complicating matters further, the trial court did not order any injunctive relief after plaintiff’s trial counsel acknowledged that “all barriers to access at the Roadhouse” had been remediated and plaintiff would no longer seek an injunction. Plaintiff candidly admits on appeal that he “tried both of his causes of action so that, among other things, he could prove entitlement to prevailing party attorneys’ fees.” Even if the catalyst doctrine had been properly invoked, plaintiff cannot be deemed the prevailing party because the evidence does not support any entitlement to relief under section 19955. . . . As discussed above, plaintiff’s section 19955 injunctive relief claim is “groundless”—that is, there is no legal merit to his claim because plaintiff failed to present any evidence that the Roadhouse required accessibility modifications under the California Building Code. The fee award must therefore be reversed. The Courts of Appeal concluded with: The judgment is reversed and the trial court is directed to enter a judgment on behalf of Lowbrau for both causes of action. The trial court’s order awarding attorney fees and costs to plaintiff is vacated, and the matter is remanded for further proceedings consistent with this opinion. Lowbrau is entitled to its costs on appeal. (Skaff v. Rio Nido Roadhouse (California Courts of Appeal, Docket No. A152462(First Appellate District))) Decision: October 2020 Published: October 2020 Feature Articles If you have an opinion on the retailing or retail real estate industries, take this opportunity to share your thoughts. Articles should run between 400 and 800 words. Topics can, be general in nature, consumer observation or specific to retail concepts or practices. Articles will be posted for at least one week and will then be placed in the Editorial Archives. All articles submitted will be read and considered but we cannot guarantee publication. Each published article will carry the submitters byline (if desired) and is a free service to our community. Article ideas and suggestions are also always welcomed. Contact PVS@PlainVanillaShell.com