Effective January 1, 2013 commercial landlords and small business tenants in San Francisco will have an additional ADA hurdle. The Board of Supervisors implemented Chapter 38 of the San Francisco Administrative Code, entitled “Commercial Landlords; Access Improvement Obligations and Notice to Small Business Tenants Regarding Disability Access.” Chapter 38 requires both landlords and tenants to provide ground floor ADA access and ADA access to public restroom facilities. This Chapter focuses on property comprised of 7,500 square feet or less for use as a public accommodation, as defined by U.S.C. Section 42. On and After January 1, 2013, commercial landlords of public accommodations will have two options to make sure that they comply with this new law:
(1) The landlord may make the necessary alterations to ensure that ingress/egress and public bathrooms comply with applicable ADA requirements before making or amending a commercial lease. They would also be required to provide a notice regarding the ADA obligations, which may be accomplished by utilizing the language of Chapter 38.2(b) [See below] – the notice must be signed by the landlord and tenant. Landlord will also be required to provide the commercial tenant with a copy of the “Access Information Notice,” which was created by the City and must be provided to the prospective tenant in the tenant’s language. Most importantly, the landlord must include a provision in every lease and amendment subject to this Chapter 38 which identifies who is responsible for requisite ADA improvements to the property, and that both parties will agree to notify the other of any alterations to the premises which might impact ADA accessibility.
(2) Alternatively, the landlord may provide notice to a prospective tenant of the ADA access obligations and that the property may not meet ADA requirements. The “Access Information Notice” brochure must still be delivered (again, in the tenant’s language). The landlord must include a provision in every such lease and amendment specifying who is responsible for making and paying for ADA improvements to the property and that both parties will use reasonable efforts to notify the other of any alterations to the premises which might impact accessibility.
The New Law:
SEC. 38.3. DISABILITY ACCESS IMPROVEMENTS; NOTICE OF DISABILITY ACCESS OBLIGATIONS.
(a) Before entering into or amending a Lease, a Commercial Landlord shall either:
(1) Ensure that existing public restrooms, ground floor entrances, and ground floor exits are accessible by removing all architectural barriers to disability access, to the extent that such improvements are required by and “readily achievable, i.e., easily accomplishable and able to be carried out without much difficulty or expense” within the meaning of any applicable provisions of Title 28, Sections 36.304 and 36.305, of the Code of Federal Regulations; or,
(2) Provide written notice to any prospective Small Business Tenant that the property may not currently meet all applicable construction-related accessibility standards, including standards for public restrooms and ground floor entrances and exits.
(b) Before entering into or amending a Lease, a Commercial Landlord shall also provide a written notice to each prospectiveSmall Business Tenant (the “Disability Access Obligations Notice”) in substantially this form:
DISABILITY ACCESS OBLIGATIONS UNDER
SAN FRANCISCO ADMINISTRATIVE CODE CHAPTER 38
Before you, as the Tenant, enter into a lease with us, the Landlord, for the following property [INSERT DESCRIPTION/ADDRESS] (the “Property”), please be aware of the following important information about the lease:
You May Be Held Liable for Disability Access Violations on the Property. Even though you are not the owner of the Property, you, as the tenant, as well as the Property owner, may still be subject to legal and financial liabilities if the leased Property does not comply with applicable Federal and State disability access laws. You may wish to consult with an attorney prior to entering this lease to make sure that you understand yourobligations under Federal and State disability access laws. The Landlord must provide you with a copy of the Small Business Commission Access InformationNotice under Section 38.6 of the Administrative Code in your requested language. For more information about disability access laws applicable to small businesses, you may wish to visit the website of the San Francisco Office of Small Business or call 415-554-6134.
The Lease Must Specify Who Is Responsible for Making Any Required Disability Access Improvements to the Property. Under City law, the lease must include a provision in which you, the Tenant, and the Landlord agree upon your respective obligations and liabilities for making and paying for required disability access improvements on the leased Property. The lease must also require you and the Landlord to use reasonable efforts to notify each other if they make alterations to the leased Property that might impact accessibility under federal and state disability access laws. You may wish to review those provisions with your attorney prior to entering this lease to make sure that you understand your obligations under the lease.
By signing below I confirm that I have read and understood this Disability Access Obligations Notice.
Signed: ____________________, Tenant
Signed: ____________________, Landlord
(c) If the Commercial Landlord does not ensure that existing public restrooms, ground floor entrances, and ground floor exits are accessible as provided in subsection (a)(1) and instead proceeds under subsection (a)(2), the Commercial Landlord shall include the following statement in Disability Access Obligations Notice required under subsection(b):
“PLEASE NOTE: The Property may not currently meet all applicable construction-related accessibility standards, including standards for public restrooms and ground floor entrances and exits.”
(d) The Commercial Landlord must sign, and obtain the Small Business Tenant’s signature on, the Disability Access Obligations Notice under subsections (b) and (c) on or before execution or amendment of the Lease and shall provide the tenant with a copy of the Small Business Commission’s Access Information Notice as defined under Section 38.6 in the tenant’s requested language.