Posted on 02/13/2018 2:26:53 PM PST by Leaning Right
I just caught something. Your reply made me re-read the op. She had already opened. You are right. An building inspector would not be doing an inspection on an open building. My bad for having brain farts. So you very wisely pointed out she should have gotten more information. I jumped the gun and thought she was not yet opened and this was before a c/o.
I apologize for my oversight.
The fedgov doen’t send ADA inspectors around to check out new business. So what agency did the inspector come from?
If the inspector didn’t give the business owner any paperwork regarding codes and compliance then the whole thing is suspect.
They can’t just walk in and tell you to change something or else without documentation if for no other reason than they can’t enforce their warning if they didn’t document it with dates. Due process and all. And it has to be signed by the business owner or manager as well as proof of service
I just realized my previous replies do not apply for her situation. I was hasty in reading your OP. I missed that she had already opened. A building inspector would not do an inspection after a c/o was issued. So I really have no idea who that could have been. She needs to contact the authority having jurisdiction (city or county) and find out if they sent somebody out and why. Does she have any paperwork?
It is possible that some private group is going around telling building owners and tenants they are in violation and what they should do to fix it. But they don’t have any force of law behind them.
You are right. I did send you another reply. I am beginning to think this “inspector” was from a private handicap rights group and not from any official city or county department.
Thank you. We were talking about different aspects without realizing it.
I still think the “inspector” being a contractor trolling for work highly possible.
It breaks my heart also, but if it was you maybe
I could see something to smile about.
I’m not a lawyer, but did spend decades in commercial real estate. Best advice:
1) Your friend should read her Lease until she understands every word in it. Does it even allow her to have seating? 2) Often Leases have an Exhibit — typically Exhibit C — that deals with construction issues. It is very likely that the Lease makes the tenant responsible for all interior improvements needed for her business operation. These are called Tenant Improvements for a reason. If by some miracle, the Lease requires the Landlord to provide a restroom, she might be able to push them into upgrading it to HC Assessible, since she can’t operate without it.
3) If it doesn’t, she might be able to beg the LL for help, especially if the strip center has lots of vacant space. Possibly they would agree to handle the HC restroom in exchange for additional rent over time. They would be more likely to do that if the new restroom made the premises more leasable in the future.
4) Research local zoning codes and health department regulations. Nowadays these documents are online in most jurisdictions. She can also go to the counters at City Hall (or whatever in your area) and ask for help. Don’t act like a complaining maniac challenging their right to make you accommodate the handicapped. Asking for help strokes their ego and forces them to be part of a solution. Find out if there are any assistance programs for Minority Owned Businesses (women are considered minorities even though they are in the majority).
5) Normally the type and number of restrooms, and even the fixtures, required is based on set in stone formulas, for different use types (in her case, restaurant) and occupant loads. For her this will probably be the number of seats divided by some constant, plus the number of employees. For a small shop, if these factors indicate only one restroom, it has to be HC accessible. Sharing restrooms with neighboring businesses is a non-starter.
6) If her premises was permitted for a restaurant use with the same number of seats in the past, and she spent very little on improvements before opening, it might be possible to argue a “hardship”. If she spent say, $1,000 on painting and floor covering, it is not reasonable to tag someone for $10,000 in restroom improvements.
Thank you for your detailed post. I get the feeling she’s not up for challenging the landlord. It’s just her personality. Yeah, I know, it’s not what you want in a business owner.
And the space she’s renting now was not a restaurant in the past.
Bu your suggestion about her looking into assistance programs for minority-owned businesses is very helpful. I will mention that to her.
You may be right about this, Subway sandwich shops DON’T have restrooms and they have tables in their shops!!!!
To put it short and sweet, “Go by the written.” Thanks for an excellent post.
There are such law. t is pursuant, in fct, to federal law= The Americans With Disabilities Act which was a direct attempt by Congress hamper small business because they might compete with the great corporations.
She should let the building department know that she wants to comply but cant afford to close the restaurant during design, plan check, and construction (of the ADA compliant restrooms) then ask if they would allow placement of ADA portable restrooms in the parking lot while she hires an architect and contractor. That would demonstrate good faith.
I missed it at first but the woman had already opened for business. This means the building department had issued the c/o. Once that happens a building inspector would not go back on an inspection. Especially on ADA compliance. So the possibilities are these,
1. The city or county has a department that inspects newly opened businesses for such compliance (doubtful). But in that case why wasn’t the need to renovate the bathrooms noted during the initial permitting process? And why wasn’t she told about the 20% disproportionate cost rule applicable to alternations of the primary function area? The OP has not mentioned that she received any official notice in writing stating the violation; how long she has to fix it; and avenues of appeal. Even if local ordinance required a bathroom be fully brought into compliance written notice would have been given.
2. A private handicap rights group sent someone in to check for violations. They told her what they thought was the law and intimidated her into taking out tables. Too bad because they have no authority to do that. She should have requested their credentials.
I am inclined to believe it is number 2.
My totally lay persons advice when I consider your OP is this.
1.She should put the tables back in. Making sure to leave enough room for wheelchair access and seating.
2. She should contact the building department and find out if they or any other department sent somebody out to check for accessibility compliance after she had opened. If they did she needs to DEMAND a written notice of violation. This should include the date it must be fixed and how she can appeal the decision.
Was there any construction involved or did she just put in tables and move in?
3. She should review the terms of the lease to see who is responsible when tenant work or changes of occupancy will trigger upgrades to existing elements to comply with laws, regulations, and ordinances. Scratch that, she should have a lawyer review the terms of the lease.
4. If it is her. See ADAAG on “alterations to a primary function area” Then hire an architect and proceed accordingly. You know, plans, permits, etc. etc.
5. If it is not her have her light a fire under building manager to meet ADA for her lease spaced.
6. If it is not clear and the owners will not do any work CONSULT AN ATTORNEY because she may be better off to break that dang lease and move on.
Oh yeah, that’s the original “Italian beef” shop in Chicago, I don’t think it’s ever going to close.
When I go to Taco Bell, the overwhelming majority of low tables are all marked handicapped — if there are any customers at all, you have no choice but to take one of those tables if you want to sit down.
I think this is how they got around it.
And yes, in about the last 5 years, I think I’ve actually seen one handicapped person in a wheelchair in one.
Now, many years ago, a good friend from college was wheelchair-bound. He and I would regularly go out to eat at the weekend and really never found a problem. Sometimes parking was a bit fun for his van (trying to find a spot).
But we probably had about 10 restaurants or so that we would regularly frequent. So once you found one, you’re usually good to go.
Who told them to put the cheese on? They never stop with the cheese!
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.