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.