Prague, October 15-17, 1987
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Accessibility Law Enforcement:
Common Problems and One City’s Success
Marilyn Golden, Judy Jackson and Peter Margen,
Access California, Oakland, California, U.S.A.
Introduction
If barrier-free design depended exclusively on the passage of laws, vast numbers of countries would already be full of buildings which are completely accessible to people with disabilities. But the laws on the books in many cities, states, provinces, and countries are almost always poorly enforced and buildings remain inaccessible, sometimes even new ones which would be so inexpensive to build in an accessible fashion.
However, in the city of Oakland, California, in the United States, a partnership between the disabled community and city government has evolved which provides firm enforcement of state access laws and regulations which may be one of the best examples anywhere of conscientious enforcement of architectural accessibility in a major urban area. This success justifies a closer examination which can identify the conditions which were required to make Oakland a place where one can depend on new and remodeled buildings providing a high degree of accessibility.
The first part of this examination will look at the problems that generally occur which keep legal requirements from being carried out. Abstract and non-specific laws, poorly informed or overworked government enforcement personnel and design professionals, and lack of sophisticated pressure groups of disabled people in the community are all contributing factors. While many countries face the same problems, this analysis will focus on the United States, and more specifically, the state of California, as this is the geographical locale of the authors. Some source and anecdotal documentation will be given, though much of the analysis is derived from the experience of the authors in writing and interpreting access regulations and advocating for their enforcement for over ten years.
The second part will look at the reasons behind the firm enforcement of access laws and regulations within the city of Oakland, California, including an examination of the relationship between the City’s enforcement personnel and an unusual City office which is a technical resource center on accessibility for people with disabilities, called Access California.
Causes of Poor Enforcement
The Development of Conflicting Access Laws and Regulations
Accessibility laws are sometimes limited in effectiveness due to multiple conflicting regulations. In the United States, for example, the first well-disseminated model accessibility guidelines were published in 1961, by the American National Standards Institute (ANSI). These standards provided minimum specifications for accessibility and usability of facilities. They did not specify which occupancy or building types should be covered nor did they discuss the extent to which facilites should be covered. While ANSI was recommended for adoption in state and local building codes, unless formally adopted by a political jurisdiction, these standards were guidelines only and had no force of law behind them.
In 1968, the United States Congress passed the Architectural Barriers Act which was the first concrete piece of federal legislation affirming disabled Americans’ rights of access to federally funded public buildings and facilities. However, the effectiveness of this act was limited by the lack of any strong enforcement mechanism. To ensure compliance with the Architectural Barriers Act, Congress created the Architectural and Transportation Barriers and Compliance Board (ATBCB) in Section 502 of the Rehabilitation Act of 1973. A 1978 amendment to Section 502 added to the ATBCB’s functions the responsibility to establish minimum guidelines and requirements for acessibility.
While federally funded facilities followed guidelines established by the ATBCB, most states incorporated the ANSI standards into their building codes, regulations, and state barrier laws; some states wrote their own standards or adopted other codes. Consequently, several different local, state and federal laws and standards on accessible design can apply within a single jurisdiction. For example, one standard may cover buildings owned by the federal goverment another may cover private facilities. While the creation of these standards were positive steps, they could not, by themselves, ensure the consistent accessibility of facilities.
Today, all U.S. states have accessibility laws , yet among states, provisions vary greatly. The majority of states require access to buildings open to the public, but some only require publicly-funded buildings being accessible; others have requirements for new structures only. Some states have not adopted minimum accessibility standards, thereby leaving wide discretion in compliance with access laws; others have not made compliance with accessibility standards mandatory.
Problems of Weak, Poorly Written, and Vague Standards
Accessibility standards vary. The best contain definite enforcement mechanisms as well as scope provisions (meaning they clearly define the types of buildings and situations in which the standards should be applied, e.g., apply to publicly-funded or new buildings only). More commonly, though, accessibility standards are weak or poorly written, resulting in less accessibility than the standards intend. A number of problems can be identified:
The state of Kentucky attempted to strengthen its access requirements and end code confusion in 1980 by passing a sweeping law on architectural access which made changes part of the building code itself. Yet Kentucky also allowed for generous waiver provisions, and exempted condominiums and small businesses altogether, resulting in less accessibility than had been the case before the changes.
While the state of California is known to have one of the best legal frameworks for carrying out access requirements (see second part of this paper) , its building regulations still contain many weaknesses. Like Connecticut’s regulations, California’s Title 24 Regulaions for the Accommodation of the Disabled in Public Accommodations, too, can conflict with other state regulations. For example, Title 24 specifies a maximum pressure which should be required to open a door, but the State Fire Marshall regulations require that a higher pressure be used when a door constitutes a fire wall.
Like Kentucky and many other states, California’s access regulations also contain provisions for waivers or exceptions from access requirements. Title 24 gives local building officials the power to grant exceptions from access requirements, if the applicant can sufficiently demonstrate that compliance would constitute an unreasonable hardship. Title 24 also contains a term called equivalent facilitation, a means by which access requirements can be waived, if a reasonable portion of what is inaccessible is provided at an accessible location or in some other fashion. Though Title 24 offers some guidelines about how to make these decisions, the guidelines are fairly abstract, inviting great inconsistency of interpretation. Conscientious building officials would, for example, use these provisions to allow a builder to construct an additional set of fully accessible restrooms if remodeling existing ones would be unreasonably expensive. Or, in a situation where there is insufficient space to provide a front-door ramp to a remodeled building, a side or back-door ramp could be permitted, if the side or back entrance is remodeled to appear as a primary entrance, with equivalent lighting, decorations, etc. But a lenient or ignorant building official might determine that ramping one step would consitute an unreasonable hardship, if ramping space is limited, and consequently exempt the building from having to provide an accessible entrance. Or an inspector might decide that in a restaurant with seating capacity for 100, equivalent facilitation would be obtained, if only one table was accessible. Provisions for equivalent facilitation and granting of waivers have led to inconsistent, arbitrary enforcement of access regualtions in California.
California’s Title 24 is a relatively comprehensive document which, unlike ANSI, contains broad scope provisions detailing occupany types affected. But it has some ambiguous areas. Thus, while Title 24 requires that recreation areas shall be accessible to the disabled, it fails to detail specifications for meeting these criteria. Consequently, individual building officials must make determination as to what constitutes usability of facilities, resulting in uneven enforcement of access provisions.
Also, Title 24 is a performance-type code that, unlike prescriptive codes which stipulate exact requirements that must be met, leaves the means of meeting requirements to the discretion of architects, builders, and product manufacturers, with results having to be proven to code enforcement officials’ satisfaction. This means that unless enforcement officials are well-versed in access regulations and conscientiously enforce these regulations, less access may be achieved than Title 24 intends.
Problems with Enforcement Mechanisms
Concomitant with inadequacies in access laws and standards comes a related stumbling block - inadequacies with enforcement mechanisms. Municipal code enforcement is notorious for graft and corruption. When building inspectors routinely trade permits for bribes, no regulations will be enforced well. But even when the enforcement process is relatively clean, access regulations in particular often go unenforced. A number of problems can be identified here: difficulties created by weakness in access regulations, poorly informed building officials and departments, overworked inspectors, lack of funds for proper enforcement, poor inspector attitudes concerning disability and access requirements, political considerations, and permit system loopholes.
In California in 1970, the Office of the State Architect (OSA) was directed to write access regulations. Yet unlike other state offices charged with writing regulations, the OSA was given no authority to audit local building departments and, thereby, ensure compliance. Without state auditing authority, local building departments are left to their own knowledge and discretion in interpreting access regulations.
Consequently, enforcement in the state is uneven with some jurisdictions firmly enforcing the access regulations and others poorly enforcing them. The California Asscoiation of Building Officials attempts to educate inspectors in the complex and often-changing access regulations, but a lot of jurisdictions have staffs of only 1, 2, or 3, and it is difficult for them to keep up with changes in the regulations.
In general, inspectors are poorly informed regarding the architectural needs of people with disabilities and enforce poorly in this area out of ignorance. Especially poorly-informed are long-term building officials who were on the job many years before the access codes existed. Often these old-time officials have not learned the accessibility regulations because it has not been their job historically to enforce them.
Building officials face problems other than a lack of education when it comes to the enforcement of access regulations. Inspectors are often overworked and may not be able to adequately enforce all of the regulations they are charged with. In such an environment, inspectors may have to make decisions about which regulations to enforce rigorously and which to let slide. Since accessibility regulations are unique in the realm of building codes in that they are relatively new, and seek to socially integrate a disenfranchised group of people into the mainstream of society rather than to ensure structurally sound building practices, inspectors may elect to ignore accessibility codes and concentrate on others.
Another problem that hinders successful enforcement of access laws is lack of funding. In California, Title 24 designated city building departments as enforcing authorities of state access regulations, but no funding provisions were included to ensure that adequate staff would be hired. Title 24 operates on the premise that building officials will be informed, but without funding, inspectors are left to their own knowledge and initiative to adequately learn the regulations; uneven enforcement of state access regulations is the end result.
Another hinderance to strict enforcement of access regulations stems from building inspector attitudes. As mentioned previously, some building inspectors fail to familiarize themselves with the access laws because it has not been their job historically to enforce them. Others are hampered by their lack of understanding of people with disabilities. If they assume that certain activities are "off limits" for the disabled, or that every disabled person will be accompanied by a non-disabled helper, these stereo-types will become concretized in an inaccessible environment. Still other building officials are against the enforcement of access regulations because of public pressure. They believe their job is difficult enough without having to convince architects and builders that they need to construct accessible buildings. Consequently, inspectors dislike these regulations because they believe that the regulations put them in a no-win situations: either builders or disabled people are upset by inspector decisions and quite often both groups end up angry with the building officials.
Enforcement officials are subject to a city’s political climate as well. Inspectors may know the regulations and believe in conscientious enforcement of them, but the overall city government may have different priorities. One northern Californian building official was known to enforce accessibility regualtions loosely when he worked for one city, but stringently in other cities where he worked both before and after, due to the overall political differences in the cities.
Even where building departments are conscientious and informed about access regulations, other enforcement personnel can hinder compliance. The Disability Rag reported on a Cocoa Beach, Florida situation where, "despite laws requring access, an about-to-open Hilton hotel had virtually no wheelchair accessibility on the first floor" . When the city building department was questioned about the situation, they were surprised. "They’d seen Hilton’s blueprints and refused to OK them....What happened? Hilton had bypassed the Building Department’s refusal by getting a waiver from the city attorney, and gone ahead with their inaccessible building anyway."
Finally, when discussing the reasons behind poor enforcement, it is important to look at the building permit process. In California, building code regulations (including accessibility requirements) are levied at the time a building is constructed or renovated. Individuals wishing to do improvements are required to take out a building permit. A contractor, architect or developer submits architectural drawings to the local building department which illustrate the work to be done. Proposed projects are then reviewed by a plan check engineer, building inspector, or permit technician to see, if the building code requirements have been met. If the plans look satisfactory, a permit is issued and the contractor proceeds with the work.
At various stages during the construction phase, field inspections are made by the building inspector. Upon completion of the project, a final inspection is conducted. If all code requirements are met, the building permit is signed by the building official and the improved space is ready for occupancy.
In theory, there are several points in the permit process in which any accessibility code violations can be caught and corrected. This sytem can work quite effectively when all staff involved have a sound knowledge of the accessibility requirements.
The system falters, if any of the players involved are unfamiliar with or have a lax attitude towards accessibility. A set of plans may be perfect in every respect but when the project is finally built the contractor may have made mistakes on the access features. The field inspector may be unfamiliar with the access requirements, overworked, or have an "I don’t care" attitude, and give the project his or her final approval.
Another problem with the permit process has to do with the variance evaluation system. California’s Title 24, as described above, allows exceptions from the accessibility requirements, if an unreasonable degree of hardship in meeting these requirements can be demonstrated. One criterion relates to cost. In attempting to circumvent the access requirements, developers will often inflate the cost of the accessibility features or deflate the total construction cost. Unless the building department is familiar with the true cost of accessibility modifications, these attempts are sometimes successful.
Accessibility is sometimes defeated after construction takes place. For example, a developer takes out a permit to remodel a restaurant. Because of physical constraints, it may be very difficult or expensive to provide an accessibile path of travel from the main entry. The restaurant requests an exception to allow a side door to be the accessible entry. Two weeks later, this door is locked by the management, or blocked by tables.
There are other pitfalls in the permit process. For example, an office building may be completed and the permit granted. But before opening, a new carpet is installed (not requiring a permit) over a soft, thick rubber pad, which is inaccessible to some wheelchair users. Accessible parking is another example. Restriping a private parking lot does not require a building permit. A building or facility may be totally accessible on the interior, but have no accessible parking in the new lot adjacent to the building.
Designers or developers who are familiar with the accessibility regulations will sometimes attempt to circumvent the requirements through semantics. For example, a proposed apartment building having requirements for accessible living units could instead be labeled "condominiums" (owner-occupied apartments) which have no access requirements. The building official now has no legal mandate to enforce accessibility. Once the building is completed, the developer could retain ownership and rent out the "condominiums".
Yet another way to circumvent the permit process is for the contractor to take out a building permit but never call for a final inspection. And of course, the most popular way to circumvent the process is to do the work illegally without applying for a permit at all.
All of the above factors contribute to the downfall of accessibility within the permit process. It takes a team of seasoned enforcement personnel to recognize these problems and prevent them.
Poorly Informed Design Professionals
Besides problems created by poorly written regulations and by faulty enforcement mechanisms, yet another obstacle to the creation of a barrier-free envrionment lies with design prfoessionals. Two central areas deserve attention here: lack of education and poor attitudes.
Design professionals normally receive no formal training in barrier-free design. Since few architecture schools teach classes on accessible design, design professionals remain ignorant of how a person who is disabled interacts with his or her environment.
Frank Bowe, writing in Handicapping America , paints an image of the average architect designing structures without giving much thought to what they create. He says that when 35 architectural groups were presented "with figures showing that ... buildings typically were accessible to .... disabled people, none of the architects could explain why the buildings were designed that way, except to say that this was how it had always been done" .
While lack of education in accessible design is a critical problem, attitudinal problems and misperceptions are just as severe. Ray Lifchez, professor of architecture at the University of California, Berkeley says that "most design professionals view access as a special interest or an afterthought" . Consequently, one often hears the question, why do we have to do this when no disabled person ever comes to this facility ? Even in California where relatively strong accessibility regualtions exist and where 3.9 million people in the state are disabled , the misperception continues that accessible buildings are for an isolated, inactive, insignificant segment of the population. Chuck Fleming, Chief of the Community Access and Rehabilitation Engineering Section, Department of Rehabilitation told of one reaction to a letter from his department reminding architects of California’s handicapped access requirements. Across the top was scrawled the following: "Isn’t all this handicapped stuff somewhat of an overkill ? Does the State have any time left over to handle the needs of the majority people ? Seems like we live in a minority-controlled society."
Commonly, architects see themselves as experts and fail to consult others when determining design criteria. Ray Lifchez suggests that many designers lack a subjective understanding of the needs of disabled people and consequently, they miss out on crucial details that make the difference between accessible and inaccessible design. For example, an architect might define an elevator where an assistant is needed to reach a high control button as accessiible. But many disabled people desire independence of movement and non-reliance on others. Simply installing a lowered elevator panel would mean that disabled people traveling without an assistant could use it.
Many architects believe that access regulations are unreasonable, and the only reasonable solution is applying for exemption. In fact, a California Department of Housing and Community Development task force determined that, "most builders and architects don’t realize how easy it is to comply. So they spend more money to avoid compliance." Yet studies have repeatedly shown that making facilities barrier-free adds less than 1% to the building cost, if it is implemented in the design stage.
Ultimately, the attitude of avoidance can be an expensive one. Builders of the Washington, D.C. Metro rail system found just how expensive an attitude can be. There, for the first known instance in American history, a public facility’s opening was delayed because it was not accessible to disabled people. Washington’s Metropolitan Area Transit Authority was forced to pay an additional 65 million (still only 1.6% of total cost! ) to make stations barrier-free after having original stations built without elevators. In the San Francisco Bay Area, a similar scenario took place. There the Bay Area Rapid Transit District had to pay an additional 16 million dollars to provide elevators after construction had begun. Accessible design makes sense, if planned from the beginning.
Lack of Sophisticated Pressure Groups of Disabled Citizens
One of the most important factors affecting access law enforcement has nothing to do with the enforcement process itself, but everything to do with its outcome - the presence or absence of sophisticated pressure groups of people with disablitities in the community who advocate vociferously and effectively for better enforcement. Ultimately, the process of enforcement is not a neutral one, but like other governmental processes, is political. In countries where governmental processes are at least partially influenceable by citizen pressure, such efforts often have a significant effect. In contrast, the lack of such pressure leaves the system to rely on many levels of ignorance and prejudice, from law-makers to government regulation-writers to design professionals to inspectors.
Examples of poor enforcement due to the lack of disabled community pressure abound, in city after city. The importance of this factor can best be illustrated by describing improvements that have been achieved when citizen pressure is present. In the state of California, two good examples are the statewide Community Access Network and the city of Los Angeles, described below. Two other Californian examples, the fight for strong statewide access regulations and the general situation in Oakland, will be described in the second part of this paper.
The Community Access Network, also known as CAN, is a network of disabled volunteers from different cities across the state who are coordinated and trained by the state of California Department of Rehabilitation to understand accessibility laws and regulations, and to educate and advocate for effective implementation. CAN began, during the administration of a liberal Californian governor, to implement a legislative mandate which instructs the Department of Rehabilitation to educate the public and work with local officials and designers to encourage and improve accessibility. In the current era, now that both the United States and California are more conservatively governed, the CAN program’s existence can be politically justified in two ways: as an example of private volunteerism, and as a cost-effective measure in which the public education mandate described above can be fulfilled without the costly hiring of numerous staff. CAN volunteers perform at a variety of skill levels, and in some cases, make a significant impact on the local enforcement situation, through effective advocacy with local government.
The story of vastly-improved enforcement efforts in Los Angeles, California due to community pressure is told in New World, journal of the Californian Association of the Physically Handicapped (CAPH). William Jordan, a disabled Los Angelean acting on behalf of his local CAPH orgnanization, began in 1981 to bring complaints about poor access code enforcement to the city of Los Angeles. For four years he experienced the frustration of meetings, letters, promises, more meetings, and little improvement which are familiar to many citizens attempting to affect large entrenched government processes. In 1986, Jordan and 3 fellow activists heightened their activity by appealing to the state’s Attorney General, a liberal state official who had previously pledged some assistance and who had a disabled lawyer on staff to whom the matter was assigned. After nine months of extensive correspondence, which documented the innumerable detailed inspections made by the disabled volunteers, pressure from the Attorney General’s Office, teamed with continued initiative from the disabled advocates, resulted in very significant change. Los Angeles has now agreed to spend 1.5 million dollars to add staff to work exclusively in access enforcement. This will be funded by an additional 10% charge on building permits for structures requiring access. In addition, numerous policy improvements have been instituted, including a policy that no final permits will be issued to any structure for which all aspects of access are not complete. The City has agreed to correct certain enforcement errors it made in any year since the particular access feature became a legal requirement. Time will tell how thoroughly Los Angeles’ policy and funding changes will reverse its history of poor enforcement, but there is no question that disabled community pressure has made a significant difference.
In summary, access laws and regulations proliferate but generally go unenforced due to conflicting and weak legal standards, ignorance of architects and building inspectors, and administrative loopholes in the enforcement process. The second part of this paper will describe one city that has overcome these problems.
Oakland, California, U.S.A.: An Enforcement Success Story
Oakland, California, a primarily working-class city of 350,000, has always played a secondary role economically and culturally to the star of Bay Area cities, San Francisco, Oakland’s sister city across the San Francisco Bay. Though increasingly becoming a major urban center in its own right, Oakland has seldom been seen in a leadership role. However, in the area of enforcement of accessibility law, Oakland presents an unusual example of outstanding enforcement which combines several crucial interrelated qualities: a solid framework of strong state laws and regulations, a sophisticated and politically active disabled citizenry which has institutionalized itself within the structure of City government, and a rigorous enforcement process carried out by conscientious and well-trained personnel. The second half of this paper will examine the role played by each of these factors in Oakland’s successful enforcement efforts.
A Solid Framework of State Laws and Regulations - Thanks to Disabled Californians’ Advocacy Efforts
The state of California has a legal and regulatory framework mandating accessibility in all non-residential structures when they are new or remodeled. Some access is mandated in new multi-unit residential structures as well. Though loopholes exist, California’s legal framework is far better than that of most other U.S. states and most countries. Since 1968, due to the efforts of early disabled crusader Dick Wooten, the Californian Government Code has required all government-related structures to be built and remodeled to be accessible to people with disabilities, and in 1970, the Californian Health and Safety Code mandated that similar standards be provided in privately-funded facilities. These laws grant authority to the Office of the State Architect to develop regulations specifiying the laws’ exact architectural intent.
The development of these accessibility regulations was a fascinating example of interaction betwen state government, disabled community advocates, private builders, and building officials (also known as building inspectors, who enforce the building code for local government). California was lucky enough to have, during the late 70s, a liberal administration which had appointed a State Architect, Barry Wasserman, who was singularly committed to carrying out the full intent of his legislative mandate to develop regulations that would make the environment accessible to people with disabilities. The development process lasted from 1975 until 1982, involved 13 public hearings, and required a considerably complicated political balancing act among the various interest groups. Mr. Wasserman had to consider, but not be dictated to by, the interests of private builders and building officials, not only because they are powerful groups, but also because their cooperation would be crucial in the regulations’ implementation. At the same time, he was lobbied heavily by, and gave serious consideration to, increasingly organized disabled community pressure. Part-way through the process, the disabled community formed a state-wide coalition, the Coalition for Strong Access Regualtions, to mobilize massive public testimony. Private builders responded by forming the Coalition for Reasonable Access (! !), and these groups slugged it out in public hearing after public hearing, and later, in negotiations. Solid pressure from the disabled community, combined with Mr. Wasserman’s own committment to fulfilling the intent of the law, produced a final regulatory document which presents a fairly advanced perspective on some of the thornier questions in the accessibility field.
For example, a difficult question for code-makers is the issue of access to a remodeled area. If a second-floor conference room of a hotel is remodeled to be accessible to disabled people, but the hotel entrance and restrooms are not accessible, no genuine improvement has occurred. For this reason, the Californian regulations require that not only the remodeled area itself comply, but also the path of travel to the remodeled area must be made accessible (whether this pathway was originally to be remodeled or not) , and the key facilities serving the remodeled area (such as restrooms, telephones, and drinking fountains) must be made accessible as well.
As noted in the first part of this paper, the Californian accessibility regulations are far from a perfect regulatory document. Many other parts of the building code are decades old, and interpretation problems have been solved and re-codified as changes. The access regulations are relatively new and therefore contain numerous problems, some of which have been described. However, they are a good start, and if rigorously enforced, can produce a high level of accessibility.
Of course, the accessibility enforcement process is no stronger than its weakest link, and local enforcement efforts across California vary widely, as has been shown. More than strong state regulations are needed to account for the high-quality enforcement found in the city of Oakland. The local disabled community and its impact on the inspectional process has made the difference.
The Disability Rights Movement, and Its Manifestation in City Government : Access California
Oakland’s trump card for successful enforcement could be its adjacency to the smaller city of Berkeley. Berkeley has a radical political history in general, and has been particularly the home of one of the strongest disability advocacy communities to be found world-wide. Interestingly, the presence of the movement itself is not a sufficient condition for strong enforcement, as is evidenced by the fact that the City of Berkeley has not particularly distinguished itself in enforcement. But the disabled community’s presence catalyzed a series of events in Oakland’s city government leading to its current success.
The birth of Berkeley’s disability movement is usually traced to the acceptance by the University of California at Berkeley of several severely disabled students in the early 60’s. The University was forced to establish a program of services for these students. When the students graduated, they were no longer eligible for university services, and being enterprising frontier-forging types who, like most college graduates, were not about to return to a dependent living situation after experiencing the independence of campus life, they needed a community agency to provide the services that had been available to them on campus. Joining with like-minded others in the community, they established the Center for Independent Living (CIL) in 1972. It spent several struggling years, then grew to become a model program which has since been copied nationally and internationally.
The concept behind CIL was an agency directed and staffed primarily by disabled people and providing support services to enable disabled clients to live independently in the community. Services included assistance in finding jobs, finding personal assistants, dealing with government benefit programs, repairing wheelchairs, counseling, finding housing , etc. CIL gave birth to what has been called the independent living movement, an important part of the disability rights movement. And CIL’s presence brought large numbers of severely disabled people to Berkeley. Their impact was clear even to a casual visitor. Berkeley became a place where it was not unusual to see people with severe physical disabilities shopping, working, owning businesses, dating, etc. Community acceptance grew and political achievements (such as the mid-70s’ agreement by the City of Berkeley to place curb ramps at every corner city-wide) matured the community. Disabled Berkeley residents became focal state and national disability movement leaders, and their political skills grew. As the 70’s passed, communities across the East Bay felt the spreading effects of Berkeley’s disabled population, and a number of organizations and agencies were formed to respond to its needs. One of these organizations, Access California, has played an unusual and essential role in improving accessibility law enforcement in Oakland.
The term "Access California" was actually the name of a federally-funded state-wide demonstration project in which seven social service agencies in different Californian cities would receive small grants in order to make programs and facilities more accessible to disabled people. Some of the social service agencies were private non-profit organizations with government funds; others were actually part of city government, as in the case of both Oakland’s and Berkeley’s agencies.
Disability advocates at the Center for Independent Living learned of the potential grant and wanted to be involved; this began a thread of strong community involvement in the East Bay Access California program which continues until this day. The CIL advocates teamed up with an enterprising grant-writer with a background in rehabilitation from the City of Oakland Social Services Department who was interested in winning one of the grants for her agency. Knowing that lackluster Oakland had little chance of competing with Berkeley, the unusual and famous Mecca-of-the-Disabled next door, they convinced the City of Berkeley to join the team.
Access California (Oakland/Berkeley) opened its doors in February, 1979. Activities and services have included advocacy for greater accessibility in buildings and programs of local and state government and other organizations, training, technical asstistance in barrier-free design, publications, research, and housing rehabilitation. Though it has always been a small program, Access California’s staff has consistently included people with severe disabilities. Access California’s Director , present since those early days, was recruited by the CIL advocates whose goal was to ensure the involvement of disabled people in the program in order to give it a disability rights direction. Thus, an unusual situation was created: a disability rights directed agency which was actually a part of City government but which owed its basic allegiance to the grassroots disability movement.
Logical questions arise about how such an agency could maintain its grassroots loyalty and still exist within government, and if it did so, how was it allowed to continue? Access California managed to walk this tightrope due to a number of factors. First of all, it was a relatively high profile program from the beginning, and once it established a good reputation, the City enjoyed the public relations results and viewed the program in a positive light. Second, Oakland is a relatively liberally-inclined city, due in part to its location in the Bay Aea, which is a politically progressive area, and also due to its demographic nature as a city primarily composed of working class people and people of color. Third, Access California staff quickly adopted political strategies which would ensure survival, advocating as strongly as possible, but not strongly enough to compromise the program’s future.
Staff strategized that, since there were so many areas of improvement needed, if a political limit was reached in one area, they would turn their efforts to another area. Being part of City government lent the program sufficient authority to be quite effective in some areas. This was, of course, not always the case when the system that needed changing was a part of City government itself. Much of Access California’s work with the City has therefore been gradual, and in some areas, limited by the political considerations described above. But in the area of improving the city’s enforcement of accessibility laws, a happy marriage has resulted in which the legal authority of the City and the technical expertise of the program mutually reinforce each other, greatly increasing the effectiveness of each party.
The Local Enforcement Process
During the second year of Access California’s operation, the City of Berkeley discontinued its funding and the program progressed under the exclusive aegis of Oakland. As the program gained technical expertise through the years and made inroads with various City departments through its advocacy efforts, extensive interaction developed with Inspectional Services, the department with authority over building code enforcement.
In Inspectional Services, Access California found a department that had the basic intent to enforce correctly, but, like many local enforcing agencies, was overworked, undertrained on accessibility, confused by too many codes, and lacked sufficient grounding and familiarity with the subject of access to take a strong stand with builders who exerted political pressure against having to comply. Access California conducted inspector training, and the ensuing mutual dialogue brought about a situation in which Inspectional Services would consult with Access California staff on non-routine enforcement questions, when the inspectors felt unsure about the intent of the regulations or the needs of a potential user. In particular, a strong relationship developed with James Barthman, Inspectional Services Director, and Calvin Wong, Supervisor of the Permit and Plan Checking Division. These two conscientious public servants became increasingly committed to strong access enforcement and to involving Access California in the process. Their role has been crucial to Oakland’s success.
A mutually cooperative and trusting relationship was developing between the two organizations which both considered beneficial. For Access California, which had attempted to work with many City departments and received enormous resistance because of the departments’ unwillingness to make greater concessions, here was a horse of a different color. Here was a department which was also, in a sense, an advocate for acces -- it was mandated with enforcing the regulations, and wanted to enforce the regulations, but it needed assistance, it respected Access California’s expertise, it appreciated (!) the help, and it usually took Access California’s recommendations seriously. For Inspectional Services, Access California provided a source of expertise otherwise unavailable. By being a part of the City, Access California could be consulted without violating the builders’ privacy and without establishing difficult-to-control community review procedures. Inspectional Services found Access California advocates reasonable in the sense of being willing to consider the practical implications of enforcement for the builders. And most importantly, in Access California, Inspectional Services had a source of expertise to depend on when making difficult interpretations, requiring judgement. This was valuable because builders are often unwilling and angry about having to comply with codes, especially new codes like the accessibility regulations which pose unfamiliar requirements. Before their cooperation with Access California, Inspectional Services was much more hesitant to insist on a strong code interpretation, if it required a builder to spend additional funds and was likely to bring significant complaints. With Access California around to blame, Inspectional Services could simply smile, point to their fellow departmental conspirator, and tell the builder that the interpretation was Access California’s; " ..after all, they’re the experts."
Of course, in actuality, Inspectional Services is the legally mandated enforcing authority, and if it disagrees with Access California’s interpretation, it does not have to accept it. And occasionally it does disagree. But in general, this marriage of convenience removes political heat from Inspectional Services and provides Access California a valid role in the enforcement process plus the knowledge that enforcement is progressing well and the environment is becoming more accessible as a result. In this way, Access California is able to make a much vaster impact on far more individual buildings than their own advocacy efforts with the City, building by building, could ever provide. And they are able to impact a much larger sector: all the privately-funded facilities in Oakland, rather than just the government-owned facilities.
In 1983, the consulting process became formalized into a weekly meeting called the Access Review Committee (formerly called the Handicap Review Committee) or ARC. Each week, ARC meets to consider all requests for waivers from the accessibility code, as well as the non-routine decisions about which inspectors do not feel confident making a clear judgement based on the regulations. Present at these meetings are technical staff from Acces California, the Supervisor of the Permit and Plan Checking Division, and the relevant inspectors when their particular buildings are being considered. Examples of questions considered include how much accessibility should a builder be required to provide in a particular remodeling job (Oakland generally requires full accesibility up to 20% of the overall cost of the remodeling job), or what should the alternative configuration of a restroom be, if the ideal configuration would be prohibitively expensive (again, over 20% of the total remodeling cost). In addition to rendering individual decisions on building permits, the ARC meetings become a forum for training inspectors to apply the regulations and determining ongoing guidelines for the department to use. As inspectors become more familiar with the accessibility regulations, they become more and more capable of making routine decisions independently. As a result, Oakland probably has some of the most knowledgeable inspectors in the state. And Access California is only used when it is truly needed - in cases where special knowledgeable is required. Routine enforcement is done well at the level it should be done - by the inspectors on their own.
The access Review Committee is perhaps most unusual in that it functions through consensus. The enforcement authorities are not obligated in any way to accept the opinions of Access California. However, the opinions are earnestly sought, always considered and usually accepted. Interestingly, the law allows but does not require Californian cities to establish a formal board to provide the same function, containing both disabled citizens and private builders, but Oakland has not done it because the informal arrangement is preferred by both the enforcement authorities and the disabled community.
Builders whose remodeling jobs need to appear before the Access Review Committee must pay an extra fee, and this fee covers the time spent by the Access California staff. The fee reimburses not only the time spent in the Committee meetings, but follow-up time spent with the builder as well. In addition, Access California provides fee-for-service technical assistance services on accessible design, where Access California staff can review plans, assist with alternative designs, or even complete reports and original designs, if the client wishes. These follow-up services with builders play an important role in the Oakland process, because most cities’ inspectors do not have time to educate builders and architects on barrier-free design, even when they understand it themselves. But in Oakland, builders and architects have an educational mechanism to which they can turn. In the same vein, Access California is also a storehouse for product information in the accessibility field. Builders and design professionals can receive recommendations on the best companies for ordering the appropriate grab bars, accessible water fountains, accessible showers, lifts, portable ramps, and other products, while design professionals and builders in other cities have no such resources.
Some examples of enforcement situations that have arisen in the Access Review Committee will illustrate the level of accessibility that has been achieved. In one example, a large corporation was remodeling its executive restrooms. The corporation argued that since none of its executives were disabled, the restrooms did not have to comply with the accessibility regulations. But the City denied the request for a waiver from the requirements, and the restrooms were made to comply. On the other side of the spectrum, small facilities performing relatively small remodeling jobs are required to consider accessibility as well, and again, they are required to spend up to 20% of the cost of the overall remodeling on accessibility, which is a higher figure than that used by many other cities.
Access for disabled employees is required by Californian code and taken seriously by the Oakland enforcers. The code requires that all areas of a facility be accessible, not only areas open to the public, so that disabled people can be hired as employees. One controversial situation involved a particular floor of a hospital where large high-technology computer and medical diagnostic machinery is housed, all of it up one step. Oakland required that this level be made accessible. In another situation at the Oakland Zoo, new animal facilities were required to be accessible due to the possibility of hiring disabled zookeepers, veterinarians, etc. Yet another employment situation involved a large parking structure with several small parking attendant booths. Oakland required at least one booth to be wheelchair accessible, though these booths are generally quite small and seldom accessible.
Places of public assembly are scrutinized closely by the Oakland enforcers because of their high public use. The Oakland Coliseum, a large sporting event and concert facility, constructed luxury boxes around its upper perimeter of seating, reachable only via narrow stairwells and completely impossible to make accessible. However, in return for granting a waiver for these luxury boxes, Oakland required the Coliseum to make a significant amount of its remaining seating accessible. Another situation involves movie theaters which have created additional separate theaters out of areas which previously were balconies. Because the California code does not require elevators in situations like these, Oakland could not require them to be installed. Instead the City requires that these theaters rotate the movies so that each movie is shown at some point in an accessible location. Though these agreements are difficult to enforce, they are on record, and when a disabled person requests a film rotation, it can be required. A final example involves the use of wheelchair lifts as alternatives to ramps. Though legally allowed, Oakland’s experience has been that lifts provide inferior access because they are seldom independently operable by the disabled user and because they often break down. For these reasons, Oakland has denied permit applicants the permission to install lifts in certain situations, on the basis that they do not provide the independent access required by the regulations.
Many cities fail to require of themselves the same standard of accessibility that they require of the private sector. Though it seems clearly unfair, it is so common that one must consider the internal and somewhat understandable reasons why this occurs so often. In California, tax reform and other economic restraints in recent years have created serious budget crises for municipalities. There is enormous pressure to cut costs, and the internal, more informal processes for City building projects often grant allowances on all kinds of code requirements. If the enforcing authority attempts to enforce stringently, s/he receives resistance not from an unknown builder but the middle manager s/he sees in the lobby of City Hall every day. The problem becomes more political, and often enforcement is not as strong. In spite of these pressures, Oakland has done its upmost, to require consistent code application regardless of whether the applicant is the City Architect, the City General Services Department, or a private builder. In one example, a new office was being built for a high-level city elected official, with a private restroom. It took persistent negotiation with certain city departments, but Inspectional Services succeeded in requiring that this restroom be made accessible.
In a slightly different situation, Oakland has been pressured to allow less stringent standards of the Oakland Housing Authority, which is a separate government body, funded by the federal government. Good enforcement has been difficult to achieve, but the Oakland enforcing authorities have invested considerable time, argument, and negotiation to obtain as much accessibility as possible.
Devoting this much time and attention to accessibility law enforcement amounts to a considerable committment on the part of the Inspectional Services. But time and attention are not the only costs. Also, the inspectional authorities receive a great deal of dissatisfaction from builders who do not want to conform to such high standards of code compliance. These builders often complain to City elected officials, for whom the strong enforcing authority can become a political liability. Even though the enforcing authority is carrying out the wishes of one strong segment of the community, the disabled, it is potentially displeasing to a much more politically powerful segment, the builders. The leadership of the enforcing department is subjected to a significant amount of flack from builders and sometimes from their own bosses in the administration of the City.
For example, a religious facility in Oakland constructed a ramp which was much steeper than the code requires and had poor railings. When the inspectors refused a permit, the facility made contact with its district’s city council representative who used her influence to defend the facility against having to rebuild the ramp at that time. There have been similar occurrences with small businesses complaining to the City Manager or even to state legislators. One restaurant received permission to construct an inaccessible mezzanine as long as a significant portion of the main floor tables were accessible, but then wanted to lower the entire main floor and was not willing to construct a ramp to this level. This situation, which would have received a simple "no" in response to its waiver request under normal circumstances, became much more complicated and politicized because of the owner’s appeal to a higher political authority who then applied pressure to Oakland’s elected officials to waive the access requirements.
To their credit, the enforcing department’s general position has remained strongly inclined towards good enforcement, even in situations like these. The department seeks support from the disabled community when necessary to back up its positions. And though occasionally, politically sensitive projects must be granted permits despite a somewhat lower standard of accessibility, even these facilities are much more accessible than they would otherwise be without the general committment to access which Oakland has developed.
While there is no simple way to formally compare Oakland’s enforcement efforts with those of other Californian cities, one can infer Oakland’s reputation as a tough enforcer from the remarks and behaviors of builders who experience the enforcement practices of many different cities. One builder in particular queried the Inspectional Services Director about why he had to provide certain accessibility features, saying that he had not been forced to provide them in Los Angeles and they are "the toughest enforcer in the state." Oakland’s Director responded , "Then you can consider Oakland the toughest in the state, because you have to do it here" .
In conclusion, Oakland’s success in enforcement of accessibility laws capitalizes on some lucky resources Oakland has: the strong legal structure of the state of California and the strong advocacy-minded disabled populace of the Oakland-Berkeley area. This disabled populace planted a seed which has born fruit within the Oakland government structure: a program which is committed to the local disability movement’s concerns, Access California. And Access California found the city’s code enforcement authority, the Inspectional Services Department, to be a conscientious and trainable partner. Access California’s assistance has enabled Inspectional Services to develop the expertise and committment necessary for strong enforcement. The two organizations have an ongoing working relationship which has resulted in consistent application of the intent of the accessibility code for several years. Inevitably, the many problems that beset all access enforcement efforts also create certain difficulties for the forces struggling towards good enforcement in Oakland. Nevertheless, Oakland demonstrates that consistent strong enforcement is possible. Oakland’s disabled residents enjoy a situation which most other disabled people still face as a challenge: they can depend upon the successful implementation of laws designed to make their environment accessible.