Riverside County Grand Jury • 2001-2002 • Agency Response

SUBMllTAL to the Board Supervisors County of Riverside, State of California F E Submittal Date: June 18,2002

Published: April 09, 2002 26 pages

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Findings and Recommendations 7 findings

The City of Riverside Building and Safety Division is in agreement with Attorney General Opinion -3-203 ("Exhibit B"), wherein local building departments are advised to enforce the state and local disabled access codes and not to enforce the federal ADA regulations. Compliance with the ADA regulations is the responsibility of the governmental body who is providing the service, in this case, the County of Riverside. Enforcement of the ADA regulations is under the authority of the federal government.

Related Recommendations (1)

A Grand Jury field inspection conducted on November 27, 2001, revealed the handicapped parking area, located at the east end of the building, was placed on a dangerously steep slope. This made moving on the surface difficult for handicapped persons in wheelchairs and walkers to navigate their way up or down the parking ramp. ADA regulations require a gradient of not more than 2 percent in any direction. (Ref: paragraph 40, Surface Parking Space Design, , dated c2000PCC) The grade at that time revealed a steep slope that was in excess of 20 percent (Figure 1 and 2) -x - Respondent disagrees partially with the finding. Facilities Management notes these items are the responsibility of the landlordlproperty owner (not the County) as required by his need to comply with City building codes. Each City's building codes are adopted from, or simply a repeat of, the State Building Codes, issued by the State Architect, which include the State's interpretation and application of Federal ADA requirements. The City of Riverside approved this building for occupancy indicating compliance with their building codes. There is documentation on file wherein the City states the ADA parking was borderline, and indicating the City instructed the owner to rework portions of the parking lot. Subsequently, the improvements received approval by the City, indicating the City's building code requirements had been met. The County Safety Office notes that these issues were not addressed until the Grand Jury became involved.

Related Recommendations (1)

County Safety Department, ADA Coordinator, Facilities Management, and all appropriate city and county agencies inspect all county owned and leased buildings and grounds to insure they meet current ADA, fire, health and safety regulations before a certificate of occupancy is issued and the facility is occupied. -x - Respondent disagrees with recommendation. Unlike County-owned facilities, compliance with Federal ADA and Title 24 of the State Building Code are the responsibility of the owner, his architect, his contractor and the City in whose jurisdiction a facility is located. It is appropriate and a good practice for the Safety Office and the ADA Coordinator to inspect a facility immediately upon occupancy, and annually thereafter to determine compliance with evacuation plans and safety requirements and obvious non- compliance with ADA. ADA compliance should be evaluated formally by the County and if anything is obviously not in compliance, the Department of I I Response to Grand Jury Report r' . . - . * "Facilities Management, on behalf of the County, as .a tenant and not as a governmental agency conducting official inspections and issuing official approvals, will bring the issue to the landlord for corrective action.

A 3&inch walkway between the front of parked vehicles and an adjacent building's walls was not available at the Mental Health Facility. (Figure 3 and 4). This violation forced patrons to walk behind several parked vehicles in order to gain access to the building. (Ref: paragraph 3, , code 11298.4.3, Arrangement of Parking Spaces of The California Disabled Accessibility Guidebook states, "Accessible parking spaces are located such that they do not compel users to travel behind parked cars other than their own.") -x - Respondent agrees with the finding. Facilities Management states that these items are the responsibility of the landlordlproperty owner (not the County) as required by his need to comply with City building codes. Each City's building codes are adopted from, or simply a repeat of, the State Building codes, issued by the State Architect, which include I Response to Grand Jury Report , -- f-‘ .. the State's interpretation and application of Federal ADA requirements. The Crty of Riverside approved this building for occupancy indicating compliance with their building codes. There is documentation on file wherein the City states the ADA , parking was borderline, and indicating the City instructed the owner to rework portions of the parking lot. Subsequently, the improvements received approval by the City, indicating the City's building code requirements had been met. The County ADA Coordinator contacted the Office of Universal Design of the Division of the State Architect to discuss the standards of the California Building Code: Title 24 which was in effect in 1996. The ADA Coordinator was advised that a slope in a parking area of up to 17% (as measured by an ADA consultant) would never have been compliant. Furthermore, Section 1023.1 of the 1996 code required walkways to be a minimum 48" wide, as well as accessible parking spaces to be located so that walking behind parked cars was not required. The ADA coordinator cites correspondence from the Director of Building Services in 1998 describing a situation in which Building Services approached the City to find out why a permit was given for a facility when there were ADA deficiencies. That correspondence stated: 'The City politely informed us that while they do inspect and enforce California Title 24 for accessibility, they are not the watchdog and do not Enforce the Federal ADA." The County Safety Office notes that these issues were not addressed until the Grand Jury became involved. P Finding #4 The asphalt surface of the parking area was irregular with deep grooves created by vehicles scraping the asphalt when parking on the steep inclined. (Figure 1) These grooves were a hazard, especially, for handicapped people using walkers or wheelchairs. -x - Respondent disagrees partially with the finding. Facilities Management states that these items are the responsibility of the landlordlproperty owner (not the County) as required by his need to comply with City building codes. Each City's building codes are adopted from, or simply a repeat of, the State building codes, issued by the State Architect, which include the State's interpretation and application of Federal ADA requirements. The City of Riverside approued this building for occupancy indicting compliance with their building codes. There is documentation in file wherein the City states the ADA parking was borderline, and indicating the City instructed the owner to rework portions of the parking lot. Subsequently, the improvements received approval by the City, indicating the City's building code requirements had been met. The County Safety Office notes that these issues were not addressed until the Grand Jury became involved. I Response to Grand Jury Report

No recommendations for this finding

The City of Riverside Building and Safety Division has no inspection jurisdiction over construction activities on County owned buildings housing County agencies. Therefore, such facilities would only be subject to the applicable inspections by the authority having jurisdiction for the County of Riverside. Conversely, the City of Riverside will continue to maintain plan review and inspection jurisdiction over any county l e w df acilities as construction projects are undertaken. And likewise, we will continue to inspect for compliance with all applicable State and City building regulations prior to the issuance of a Certificate of Occupancy or final inspection approval. n c: Steve Whyld, Planning Director Exhibit A (Attorney General Opinion #93-203) July 26, 3 99.3 Al7ORNEY GENERAL: OpWon Report GOVERNMENT AG: Local Building Departments Aren? 4. 7he Callfomh Attorney General may bring a Rerponsibk for Enforcing Access Requlrementr cMI right. actJon to enforce etate accm Of Americans With Dlsrbiiitler Act rrgulrrments in Certain circumstancca; the responslblllty for brlnging actlons to secure Requested by TOM HAYDEN. Member compliance with federal access quhrnents rests California Senate with private p d u a nd the Unlted States Attorney OpWon by : DANlEL E. LUNCREN Cieneral. Attorney General CRECORV L WNOT ANALYSIS Dep. Attorney General Casc No. : No. 93-203 In an-g the roka of local buildlng ! Date Ned :J uly 14. 1993 departments and the Cdlfbrnfa Attorney General In enforcing the qulrements for accesslbillty by THE HONORABIE TOM HAYDEN. MEMBER OF disabled persons to pkabo f publlc acwmmodatlon THE CALIFORNIA S E M . has rquesttd an 'and commercial facilltles, we prellmlnady examine opinion on the foUowlng questions: two kgisbh schemes. The Brst b a federal law. and the second 1s a state statute. I. AJ-Cl ocal bullding departments responsible for enforcing the access requirements of the Arnerlcanr A. The Americans Wlth DIsabtllUes Act wlth DlsabillUes Act incorpoatd into CdUomia law by chapter 913 of the Statutes of 19927 The Arnerlcans Wlth DIsabllltfes Act of 1990 (Pub.L No. 101-336; 42 U.S.C. 8 12101. et seq.; \ 2. Ifnot arc I dbu0 dlng departments authorized hereafter ADA^' was enacted by Congruu as a cMI i to ekct to enforce the federal requirements rights statute to deal with dlscrimlnathn agamt Incorporated into CaWornla laan indlvlduab wlth dJsabilltks ia the amu d employment Wtfe I), pubk servlccs Vtle 10, and in I

Related Recommendations (1)

Numerous internal memos since April 1997, concerning these same safety issues were sent to managers and supervisors. Correspondence from the County Safety Ofnce was sent to the Department of Mental Health on June 28,1999, concerning these same issues. -x - Respondent agrees with the finding. Facilities Management states that there are numerous memos and letters in the lease file located at Facilities Management concerning several issues at the building, one of which was the east side parking area. The memos were directed to the Department of Mental Health from the County Safety Office and the Ofice of the ADA Coordinator. The letters were also forwarded to the owner requesting his assistance with these issues, which were denied. The owner indicated he was in compliance by virtue of the City's inspections and approval, and that any improvements or reconfigurements in the parking lot required by the County would be the financial responsibility of the County. There is a memo in the file from Facilities Management to the Executive Office, dated 7/00 regarding the cost to make these improvements. The central issue in this instance was about who would be responsible for the cost of any corrective work required. If an issue involving cost can wait until the lease comes up for renewal, the County has leverage. Without the leverage gained by having the opportunity to threaten to relocate and not renew, or in the case of resistance from the landlord during the term of the lease, the only recourse is take the matter to Court. Related, the Department of Mental Health sent a memo to the Safety Office dated August 24, 1999 addressing numerous items identified by a memo dated June 28, 1999 "Review of Employee Safety Issue at Mental Health CCC." The Department responded to all four items brought to their attention in the above mentioned memo. No further correspondence was received from the County Safety Office and it was considered a closed issue from the Department's perspective. The County Safety-Office notes that these issues were not addressed until the Grand Jury became involved.

No recommendations for this finding

Safety records reveal that annual building inspections are not being performed as required by Riverside County Standard Safety Operations Manual. I Response to Grand Jury Report /*- -- - . - - ..x - .Respondent disagreespartially with the finding. - Facilities Management notes there are inspection reports in the file issued by the County Safety Office dated 2/14/97, 6/12/01 and 2/25/02. The County Safety Office reports they last performed an Annual Safety Inspection on January 29,2002.

Related Recommendations (1)

Chapter 913 added h e same requlrtrnent to bring an acUon agalnrt the dl+ctimlnefbg m. (S ee ( Go~mmcncC ode seraon 19952. Under Lhls secUon. Lhe 308(aJ(1]. (21; Ctv. Code. 1 52, rubdr. (4.@ .I The owner or manager of a place of public amusement and Cabfomla Attorney Ctned may intcmne ln 8 pfhk reson must pmvlde seating or accommodations for actton whlch saka relief h m t he denid of tht cqud physkdy disabled pemns in a variety of locattons wlthln protcctlon of the hwr under the FomnthA mndment to Lhe faclllty at lhc tlme of lts consmctlon. the Udted States ConsUtutbn on acwunt of a pcrmon'r dtsabillty tf the case i. ofg e dp ublic kaportnn~.( C~V.

The parking lot has been reconfigured to correct known violations. -x - Respondent agrees with the finding.

Related Recommendations (1)

Until ~uchti mc as the revised acocrstbtllty-related pmtsions of the CBSC have bccn ceded by the Udtrd &amhers (1 974) 1 1 Cal.3d 1. 14-16: kpk u rel lunch v. Stqerlor Court (1970) I Cal.3d 910. 912, fh 1.) Stab Attorney General. prtvate partlcs who desfgn and construct places of public accommodation and cornrnerctal facilltks must look to the ADA in order to have reasonabk 11. To the extent that state amus rtandardr ucceed wurancc that they 6ue not engaging ln 8 brrn of those of (he ADA fedde nlbmmnt action wuld not k d l ~ ~ t lthoerneun der. available. BarcLyr Minth Cirruit Service delivers concise case summaries biweekly; months before they appear in the ad- vance sheets, If you order our service, it will save you time and simplify the way you do research. is to get to the point. If you think we're exaggerating, call Barclrys Law Publishers for free . issues. B A R C L A Y S " (415)244-6611 130 AITORNEY GENERAL'S OPINIONS Volume 76 6 cities in the absence of an express grant of authority and in the absence of any specified limitations. (See Safer v. Superior Court (1975) 15 Cal.3d 230, 236238; Board of Trustees v. Judge (1975) 50 Cal.App.3d 920,927; 76 0ps.Cal.Atty.Gen. 86, 89 (1993); see also Wildlife Alive v. Chickering (1 976) 18 Cal.3d 190, 196; DeWeese v. Unick (1980) 102 Cal.App.3d 100, 106.) "'The mode prescribed is the measure of the power."' (People v. Zamra (1980) 28 Cal.3d 88, 98.) It is concluded that a general law county or a general law city may not enter into a "job order contract" in excess of $50,000 for the performance of public projects involving minor construction, and the renovation, alter- ation, painting, or repair of existing facilities, except under the narrowly defined conditions of section 20128.5 applicable only to counties. Opinion 'Ns.$&2U3+a@ 1&-19!J3 Requested by: MEMBER OF THE CALIFORNIA SENATE Opinion by: DANIEL E. LUNGREN, Attorney General Gregory L. Gonot, Deputy THE HONORABLE TOM HAYDEN, MEMBER OF THE CALIFOR- NIA SENATE, has requested an opinion on the following questions:

Conclusions 4

CL1

Local building departments are not responsible for enforcing the access requirements of the Americans with Disabilities Act; however, they are required to enforce state and local building codes which have incorporated the federal requirements.
CL2

Local building departments are not authorized to elect to enforce the federal access requirements; however, they are required to enforce state and local building codes which have incorporated the federal requirements.
CL3

Local building departments are generally immune from financial liability for enforcing state building requirements.
CL4

The California Attorney General may bring a civil rights action to enforce state access requirements in certain circumstances; the responsibility for bringing actions to secure compliance with federal access requirements rests with private parties and the United States Attorney General. ANALYSIS In analyzing the roles of local building departments and the California Attorney General in enforcing the requirements for accessibility by disabled persons to places of public accommodation and commercial facilities, we preliminarily examine two legislative schemes. The first is a federal law, and the second is a state statute. A. The Americans With Disabilities Act The Americans With Disabilities Act of 1990 (Pub.L. No. 101-336; 42 U.S.C. 8 12101, et seq.; hereafter "ADA")* was enacted by Congress as a civil rights statute to deal with discrimination against individuals with disabilities in the areas of employment (Title I), public services (Title 11). and in the construction or alteration of places of public accommodation and commercial facilities (Title III). Unlawful discrimination occurs under Title 111 when a private party.designs and constructs a new public accommodation or commercial facility, or alters an existing one, and fails to make the facility "readily accessible to and useable by individuals with disabilities." (5 303.)= Title III is.implemented by regulations issued by the United States Attorney General (4 306(b)), and the standards included in the regulations are required to be consistent with the minimum guidelines and requirements 1 All unidentified section references hereafter are to the ADA. a Discrimination may also occur through a failure to remove structural barriers when such removal is "mdily achievable" or a failure to utilize readily achievable alternative methods if removal of the banien cannot be readily achieved. (4 302@)(2)(A)(iv). (v).) Blnbcv Buder & Co.. Inc.) . . ... . ATTORNEY GENERAL'S OPINIONS Volume 76 promulgated by the Architectural and Transportation Barriers Compliance Board (5 306(c)). Enforcement of Title 111 access requirements occurs by means of (1) private suits by individuals who have been subjected to discrimination, or who have reasonable grounds for believing that they are about to be subjected to discrimination (5 308(a)), and (2) suits commenced by the United States Attorney General when there is reasonable cause to believe that there is a pattern or practice of discrimination, or an individual act of discrimination that raises an issue of general public importance (5 308(b)). The United States Attorney General may, upon application of a state or local government, certify that a state law or local building code meets or exceeds the minimum requirements of the ADA for the accessibility and useability of facilities covered by Title 111. (5 308(b)(l)(A)(ii).)s Such certification provides rebuttable evidence that the ADA requirements are met or exceeded by the state or local code in an enforcement proceeding under section 308. B. Chapter 9 1 3 of the Statutes of 1992 Chapter 91 3 of the Statutes of 1992 was enacted by the Legislature "to strengthen California law in areas where it is weaker than the Americans with Disabilities Act of 1990 . . . and to retain California law when it provides more protection for individuals with disabilities than the Ameri- cans with Disabilities Act of 1990." (Stats. 1992, Ch. 913, 5 1.) The areas addressed by the state legislation include employment, transportation, public One of the basic changes in California law effected by chapter 913 was the adoption of the ADA's broad definition of "disability"4 where that term is used in the Unruh Civil Rights Act (Civil Code, 5 51) and various other anti-discrimination and equal rights statutes. (See, e.g., Bus. & Prof. Code, 5 126.5; Civil Code, 55 51.5, 51.8, 52, 53, 54, 54.1-54.3.) Chapter 913 also added a provision to Civil Code section 51 declaring a violation of . . .. 3 Modifications to the California Building Standards Code (title 24. Cal. Code of Regs.) have been . prepared by the State Architect to bring the code into conformity with the requirements of the ADA. 'Ihe revisions were approved by the California Building Standards Commission on March 5. 1993, and will become effective 180 days after publication. 7he code, as revised. may then be submitted to the United States Attorney General for certification. "Disability" is defined in the ADA (4 3) and chapter 913 (see. e.g.. Bus. & Prof. Code. 8 126.5; Civil Code. 4 54) to mean any of the following with respect to an individual: (I) a physical or mental impairment that substantially limits one or more of the major life activities of the individual. (2) a record of such an impairment, or (3) being regarded as having such an impairment. BlmhcP, Badu & co., Inc.) July 1993 AlTORNEY GENERAL'S OPINIONS @ the ADA to be a violation of the Unruh Civil Rights Act. However, Chapter 913 left unaffected the following proviso of the Unruh Civil Rights Act which is also contained in other anti-discrimination statutes (Civil Code, $5 51, 51.5, 51.8, 52): i "Nothing in this section shall be construed to require any construction, alteration, repair, structural or otherwise, or modifi- cation of any sort whatsoever to any new or existing establish- ment, facility, building, improvement, or any other structure, or to augment, restrict, or alter in any way the authority of the State Architect to require construction, alteration, repair, or modifica- tions that the State Architect otherwise possesses pursuant to other provisions of the law." Similarly, chapter 913 retained the following proviso in Civil Code section 54.1, subdivision (b), which concerns full and equal access to all housing accommodations: "Nothing in this subdivision shall require any person renting, leasing, or providing for compensation real property to modify his or her property in any way or provide a higher degree of care for an individual with a disability than for an individual who is not disabled." Chapter 913 amended one statute specifically governing building con- struction. Government Code section 4450 ensures "that all buildings, structures, sidewalks, curbs, and related facilities, constructed in this state by the use of state, county, or municipal funds. or the funds of any political subdivision of the state shall be accessible to and useable by individuals with disabilities." Under this statute the State Architect has adopted regulations and building standards necessary to assure access to and useability of public buildings by individuals with disabilities. The same regulations are made applicable by Health and Safety Code sections 19955 and 19956 to public accommodations or facilities constructed with private funds. Chapter 913 added the directive with respect to these statutes that "in no case shall the State Architect's regulations and building standards prescribe a lesser standard of accessibility or useability than provided by regulations of the Federal Architectural and Transportation Barriers Compli- ance Board adopted to implement the Americans With Disabilities Act of 1990." (Gov. Code, 5 4450, subd. (b).)s 5 Chapter 913 added the same requirement to Government Code section 19952. Under this section. the owner or manager of a place of public amusement and resort must provide seating or accommodations for physically disabled persons in a variety of locations within the facility at het ime of its consmction. ( M e w B mda & Ca.. Inc.) . . .. . .. . . . . . " _ . ' . .." r i>*.. -... . - , . . . ., . i .. . . 134 ATTORNEY GENERAL'S OPINIONS Volume 76 Having briefly reviewed both the ADA and chapter 913 as they relate to each other in the context of accessibility requirements imposed at the time of building construction or alteration, we turn to the roles of local building departments and the California Attorney General in enforcing the two legislative schemes. C. The Role of Local Building Departments in Enforcing Access Requirements Under the ADA and Chapter 913 The enforcement of state laws that require places of public accornrnoda- tion and commercial facilities to be made accessible to and useable by individuals with disabilities is the responsibility of local building depart- ments. (Health & Saf. Code, § 19958.) Building standards to ensure such accessibility and useability have been adopted by the State Architect and approved by the State Building Standards Commission. (Health & Saf. Code, 3 18938; Gov. Code, 5 4450.) These standards have recently been revised to bring the California Building Standards Code (hereafter "CBSC") into conformity with the access requirements of the ADA.. While the ADA access requirements have not been incorporated per se into California law. the CBSC's recent revision ensures that the "readily accessible" standard of the ADA will be met when there is construction or alteration of a place 0 of public accommodation or a commercial facility. Neither chapter 913 nor the ADA has changed the access enforcement responsibilities of local building departments. They continue to be charged only with enforcement of those access requirements which appear as pan of the CBSC or local building codes. The ADA does not provide for the enforcement of federal law by local building officials. (See 5 308; U.S. Dept. of Justice, Technical Assistance Manual for Implementation of Title III of the ADA, $ 111-8.1000.) This is true even when the officials are enforcing a state or local code certified by the United States Attorney General. (Id., at 8 LII-9.1000.) The ADA's enforcement mechanism is the traditional case- by-case method of civil rights enforcement which depends on the filing of complaints rather than a system of government inspection. (Id., at 5 111-9.2000.) Chapter 91 3 uses certain features of the ADA to broaden and strengthen California's anti-discrimination and equal rights statutes, but it does not alter the pre-existing statutory structure for ensuring accessibility and useability in the construction or alteration of places of public accommodation and 6 This administrative pmcess was begun in response to he need to obtain celtification of the CBSC from the United Stabs Attorney General under the ADA's provisions and was underway when chapter 91 3 was enacted. Bcuthw Bcndu & co.. Inc.) . --. .... .. .. -,*-v- ;: . , , . - . ..r !::. - ., : -?> .. " . : ' - .- .: - . - :: . . - . : .- : - , . ". .*.... ... .*-> >.. -.:-?.=-. .. . . . .. , . .. f i July 1993 ATTORNEY GENERAL'S OPINIONS 135 i commercial facilities. It does not mandate local building officials to enforce t the federal access requirements, nor could it; rather, it directs the State Architect to adopt those ADA requirements which prescribe a greater degree of accessibility and useability than that provided by existing state law while 1 preserving state standards which exceed the level of accessibility and useability afforded by the ADA. Enforcement of state anti-discrimination and civil rights statutes modified by chapter 913 continues to occur as i described in the specified statutes. When local building officials review construction activity that might constitute a violation of a state anti-discrimination or civil rights statute, their role is to enforce the terms of the state and local building regulations. They may not elect to assume greater or different enforcement powers than those specifically or necessarily implied under California law. (See Ferdig v. State Personnel Board (1969) 71 Cal.2d 96, 103-104 ["Administrative agencies have only the power conferred on them by statute and an act in excess of those powers is void"].) Chapter 913 does not contain a provision which could be viewed as an implied grant of authority to interpret, apply, or directly enforce ADA accessibility requirements. If a building as proposed or in the process of being constructed contains certain features that are "not up to code" from an accessibility standpoint, a construction permit may be denied and construction halted; but the "code" utilized by local building officials in this regard continues to be the CBSC as revised, and the local building code, if any.7 We therefore conclude that local building departments are not responsible for enforcing the access requirements of the ADA; however, they are required to enforce state and local building codes which have incorporated the federal requirements. Local building departments are not authorized to elect to enforce the federal access standards apart from the CBSC and local codes. These conclusions render moot the question as to whether chapter 913, in conjunction with the ADA, affects the traditional immunity from financial liability granted to local building officials who are engaged in the performance of their official duties. (See, e.g., Gov. Code, 88 820.2, 820.4, 821.2; Cal. Code Regs., tit. 24, 8 202, subcl. (f).) 7 Until such time as thc revised accessibility-related provisions of the CBSC have been certified by the United States Attorney General. private parties who design and construct places of public accommodation and commercial facilities must look to the ADA in order to have reasonable assuma that thcy are nu engaging in a form of discrimination thereunder. B(.nhew %ndcr & co.. Inc.)