For lifelong San Jose resident Michelle Mashburn, there are parts of the city where she can never go.
That includes streets like San Pedro Square or Lincoln Avenue in Willow Glen, where sidewalks and parking spots have been converted for outdoor dining which isn’t wheelchair friendly.
“I just avoid it altogether,” Mashburn told San José Spotlight. “I can’t get out to enjoy much of anything right now.”
Some streets have always been difficult to maneuver because of busy foot traffic or bumpy sidewalks, but Mashburn said it’s gotten worse since the pandemic. San Jose’s Al Fresco program waived fees and permits for small businesses to utilize sidewalks, streets and parking lots to operate outdoors as a Hail Mary to survive COVID closures and restrictions.
Businesses and local leaders raved about the success, noting it transformed city streets into chic and safe community spaces. But what worked for businesses shut out part of the community—those with disabilities—from maneuvering unimpeded in many San Jose areas.
“It’s left an entire community behind,” Mashburn said.
Mashburn said she and others with disabilities haven’t sued these small businesses because they don’t want them to close, but oftentimes it’s the only way to make change happen.
Americans with Disabilities Act (ADA) lawsuits have been a growing concern in Santa Clara County, where hundreds of businesses have been sued during the pandemic for alleged violations. Some, including Crema Coffee and longtime business Time Deli, had no choice but to shutter because ADA requirements were unaffordable.
To combat the problem, state Assemblyman Alex Lee wrote Assembly Bill 2164 to allow local governments to continue collecting a $4 fee attached to permits and licenses to fund disability compliance programs. Cities can use these fees to pay for compliance inspectors and grants that help small businesses construct accessibility improvements. San Jose also uses the funds to offer businesses grants of up to $8,000 to make physical improvements to their shops.
Restaurant owners in San Pedro Square were wary about answering questions about accessibility and ADA compliance. They expressed a desire to be inclusive and were adamant they followed city code when setting up their outdoor spaces. However, they noted there wasn’t much follow up from the city to ensure accessibility. They spoke to San José Spotlight anonymously in fear of being targeted by an ADA lawsuit.
“As long as the sidewalks are available and we’re not blocking anything, then I don’t think there are violations,” a local business owner said. “Individual restaurants have been sued throughout the pandemic because of parklets, so it’s obviously a heightened topic and no restaurant would want to knowingly prevent any customer from accessing any part of their establishment.”
Parklets are here to stay
City officials say they provided extra support during the early part of the pandemic by evaluating access, providing businesses with written guidance on ADA requirements and implementing improvements, including installation of ADA-compliant ramps, signage and paths.
The city also noted that Al Fresco applications specify business owners must comply with the law to ensure accessibility and can pull permits from businesses that don’t.
Economic Development Deputy Director Blage Zelalich said the city will only check ADA compliance if a complaint is filed.
“Business owners are individually responsible for ADA compliance and the city does not have resources to proactively inspect entire business areas such as San Pedro Square or Willow Glen’s main street for infractions,” Zelalich told San José Spotlight. “However, the city’s public works department works to ensure ADA compliance (is in place) when street, sidewalk and driveway improvements are constructed and sidewalk seating (and) parklet plans are reviewed and permitted.”
Since the program, six complaints regarding accessibility have been made by one person, Zelalich said. City officials reached out to the businesses to take corrective measures, but the city cannot enforce those requirements.
San Jose recently created a new Disability Affairs Officer position in the city manager’s office. Raania Mohsen, former Councilmember Chappie Jones’ chief of staff, took on the role.
“This position seeks to provide a point of contact for the community and for (city) employees to address and improve disability access,” Mohsen told San José Spotlight. “I want to make sure that the disability community feels like they have access to city services and programs.”
Mohsen said the city will provide more ADA education and coordination across departments to improve how it designs and implements city policies and programs.
This will be especially important, Mashburn said, as the city considers permanently closing streets from car traffic like San Pedro or Post in downtown, which are pilot programs. Mashburn said she understands the benefits for local shops and doesn’t want outdoor dining to end, she just wants the the city to place more emphasis on accessibility.
“I’m actually being gentrified out of the downtown core because I (don’t) have parking and I can’t move anywhere,” she said. “These are the catastrophic consequences of not only the pandemic, but urban planning that doesn’t (focus on) the disabled community in general.”
Contact Jana Kadah at [email protected] or @Jana_Kadah on Twitter.