In May 2020, businesses were facing uncertainty surrounding a developing global pandemic and the related stay-at-home orders. Their future to remain viable and successful was in doubt, and sadly, some of them did not survive. Locally, hospitality businesses struggled to find creative ways to persevere. A key determining factor was location. Some gained a ray of hope, if they were lucky enough to have access to outdoor space, and funding. The city responded to the crisis, with a number of critical accommodations by way of the Emergency Economic Recovery Ordinance (EERO).
City leaders allowed restaurants the opportunity to provide outdoor dining in the public right-of-way (PROW). They also were given leeway to do so in a “permit-less” process, virtually free of any regulatory oversight. There were few caveats, but among them was the inescapable fact that all new construction and alterations must conform to all federal and state accessibility requirements.
To appreciate fully why that requirement is inescapable, one needs to have some legal perspective. The PROW is an easement for public access, and the city has a responsibility to ensure that access is maintained for everyone. State statutes and local ordinances may call for stricter accessibility, but they have no authority to preempt laws required at a higher level. In fact, the California Building Code (CBC) does have some more stringent accessibility requirements than the American’s with Disabilities Act (ADA). Nothing in the EERO may authorize less accessibility, neither temporarily, nor in light of a global pandemic. These are civil rights laws. By removing regulatory oversight, our municipality seems to have effectively subverted CBC and ADA accessibility requirements but may find that to be an untenable position.
Exacerbating the issue for restaurants is the fact that city staff has provided restaurant operators with a series of ever-changing guidelines, which frequently contradict state and federal accessibility requirements. Poor guidance is not solely to blame for the current lack of accessibility, as many restaurant owners have completely ignored such guidance. Varying levels of awareness and empathy most certainly are factors.
The vast majority of the barriers to accessibility created in their dining expansion, fall into one of the following categories; ramps, access openings in perimeter barriers, tables, and clear access aisles. Ramps are required, up to elevated platforms and down to street level, when perimeter barriers do not allow for street level access. All public dining accommodations are required to ensure that 5 percent of their seating is accessible to people with disabilities. That means some tables must meet specified dimensions and configurations, and there must be clear width aisles to them.
Legalities aside, most reasonable minds would agree that a policy of inclusion is the morally and ethically correct one. Our society no longer tolerates discrimination against people for the color of their skin, their gender identity or their sexual orientation. Why should we tolerate discrimination against people of varying physical abilities? Anticipating a post-COVID future, we need to decide as a community what we want our downtown to look like, whom we choose to include, and how.
Before COVID, our Public Works Department had a program for sidewalk dining. This program included a “permit and review” process, intended to meet the city’s obligation to ensure accessibility and mitigate risk of liabilities. Expanding the existing Sidewalk Dining Program to include all dining in the PROW would require more effort than the current policy but would seem to be a natural evolution to provide a framework for a more equitable solution.
It seems that the disabled members of this community have been largely empathetic to the need for leniency throughout the crisis, despite being subjected to discrimination. As the world begins to celebrate a welcome return to normalcy, that empathy is waning, as disabled persons are realizing they weren’t invited to the party. It is becoming increasingly difficult to side with the plight of a struggling business who openly discriminates against you. This is an untenable situation and is reaching a breaking point. Whether the impetus of policy change comes from public outcry, municipal actions, or civil litigation, we will get there. Inclusion is the inevitable outcome and we’d all be better off if we can get there quickly and amicably.
This piece was co-authored by Bob Burnham and Nick Koonce. Koonce is a member of the city’s Access Advisory Committee and the Building & Fire Code Board of Appeals.