In California,
a Frenzy of ADA Suits
The Americans with Disabilities Act, of itself, has no enforcement powers. One way that people with disabilities can seek redress for an ADA violation is by filing a lawsuit. (Mediation also is an option; see the story in Quest Extra.)
In California, that option for seeking relief has created a bit of a suit-happy phenomenon.
The number of lawsuits filed there alleging ADA access violations in buildings, sidewalks, bathrooms and other areas is easily the highest in the country. California doesn’t necessarily have more ADA violations than other states, but they do offer more financial incentive to sue.
Federal law provides that individuals who win an ADA access lawsuit are entitled only to payment of attorney’s fees and whatever steps are necessary to remedy the access problem.
But in California, state law adds considerably to the pot. Plaintiffs can recover not only attorney fees, but also a minimum of $4,000 in damages — per violation. Above and beyond those amounts, state code permits victorious plaintiffs to recover three times the amount of their actual damages (minimum $1,000) along with lawyer fees, if the judge approves them.
In 2005, almost 80 percent of the more than 900 ADA lawsuits filed in federal courts in California were from only 10 law firms or individual attorneys — and in some cases those few lawyers filed hundreds of suits on behalf of a single individual. In some instances they filed nearly identical paperwork, differing only in the “fill in the blank” space for the defendant’s name.
Some filers brought so many suits that they were declared “vexatious litigants,” and forbidden to bring any more suits in federal court without specific approval from a judge.
The upside of all these suits and financial awards is that California is now among the most physically accessible states in the country.
The downside is a negative backlash against ADA requirements and people with disabilities. Many businesses are defensive about being sued, concerned not so much with legitimate ADA compliance as with not being bullied by the few litigants who abuse the system.
“Certainly we feel that the excessive number of lawsuits is an abuse of the legal system,” says Kevin Maher, senior vice president of government affairs for the American Hotel and Lodging Association. “The issue here is not one of increasing access, because often the violations are very minor ones that could easily be corrected. This is a case of lawyers going after monetary rewards.”
But Peri Jude Radecic, acting executive director of the Arizona Center for Disability Law, asks why, if the violations are minor, the industry isn’t moving ahead to correct them.
“What may be minor to an industry could very well be major to a person with disabilities,” she says.
ADA Victories in the Past Year
Scooters OK on New Jersey roads
A policeman told 14-year-old Matthew Tempe it was illegal to ride his motorized scooter on public roads. Matthew, who has Becker muscular dystrophy, felt he was being discriminated against, and so did his parents and several New Jersey lawmakers. The latter introduced legislation to make scooter use on streets permissible, and the measure passed handily. Matthew’s scooter must display a decal and he has to have insurance, but otherwise he and others are now free to roll.
Oops — Sidewalk ramps, again
Some American cities that constructed ADA-compliant sidewalk ramps (curb cuts) to accommodate wheelchair users years ago now have to rip out the ramps and start over at a cost of millions.
Despite their good intentions, cities sometimes misinterpreted federal guidelines (or the guidelines changed) and built ramps that were too narrow, too steep or lacked rough surfaces for traction. When federal auditors found the ramps deficient, they advised local governments to make the fix.
Cities don’t want to risk offending Uncle Sam in this instance because refusing to comply with the ADA could mean losing federal funds for roadwork. Most municipalities rely heavily on those funds.
And in a new take on the sidewalk curb ramps issue, the U.S. Department of Justice disagreed when a small township in New Jersey argued it shouldn’t have to install curb ramps in existing sidewalks because the township had fewer than 50 employees. DOJ ruled that an exemption for small public entities “applies only to the administrative obligation to complete a transition plan” demonstrating ADA compliance — not to the obligation to make public sidewalks accessible.
Retailer Web sites must be accessible
A federal district court judge ruled that a retail merchant can be sued if its Web site is inaccessible to people with disabilities. Target Corp. had tried to maintain that only its facilities (i.e., stores) fell under ADA jurisdiction. Disability Rights Advocates, the nonprofit law firm that brought the suit, said, “The court clarified that the law requires that any place of public accommodation is required to ensure that it does not discriminate when it uses the Internet as a means to enhance the services it offers at a physical location.”
Service animals OK in
restaurants …
A woman with disabilities and her husband were told to leave a Shoney’s restaurant in Tennessee because they had a service dog with them. After a few conversations with DOJ about ADA requirements, Shoney’s signed a settlement agreement that requires each Shoney’s restaurant to conspicuously display a sign that reads, “Individuals with disabilities and their service animals are welcome at Shoney’s Restaurants.” The company also agreed to train all employees in their obligations under the ADA.
… And in this company’s taxis
A driver for City Cab in Crestview, Fla., refused to pick up Rex Haney because he used a service dog. Haney filed a complaint with DOJ. City Cab admitted no liability, but the settlement agreement it signed with DOJ provided, among other things, that the company will offer Haney and his dog one free one-way taxi ride per day five days a week within Crestview city limits between 6 a.m. and 5 p.m, for a year.
Cab company changes
wheelchair policy
In Eau Claire, Wis., Jamie Friederich and a friend called Limo Economy Car to pick them up after a late-night concert. When the driver saw Friederich was a wheelchair user, he drove off with no explanation. The Wisconsin Coalition for Advocacy contacted Limo and was told the company had a no-wheelchairs policy, that cabs had no room for wheelchairs and wheelchairs were safety hazards. Then the U.S. Department of Justice got involved. Limo has rewritten its policies and now accepts passengers who use wheelchairs. It also agreed to send a letter of apology and $500 each to Friederich and his friend for their inconvenience.
Buses get more user-friendly
Four people with disabilities in Detroit filed suit against the city over problems with wheelchair access to city buses and some drivers refusing to stop and pick up wheelchair users. The city denied any wrongdoing, but agreed to an extensive list of requirements that included a section on driver conduct. Now drivers may not bypass a wheelchair user waiting to board; must stop the bus at a spot where a passenger in a wheelchair can safely debark; shall leave their seats if necessary to help passengers with disabilities board the bus; and must ensure that wheelchairs are securely fastened in position with tie-downs.
Some Signs of Progress
Employment
College students with disabilities who are about to enter the job market may be able to get their resumes included on a national database accessible to potential employers.
The Workforce Recruitment Program for College Students with Disabilities is co-sponsored by the U.S. Department of Labor’s Office of Disability Employment Policy and the U.S. Defense Department. Each year, the program sends recruiters to college campuses to interview students with disabilities, then adds their names to the database.
Interested students should contact their campus disabilities coordinator for more details.
Another sign of greater employment access is Walgreens’ jobs Web site that is fully accessible to people with sensory, physical and cognitive disabilities. The chain’s site uses photos, video, large-print text, audio messages and equipment friendly to those who use screen reader technology. Prospective employees can watch videos of Walgreens staff performing specific functions, to determine if they could function in those roles.
Awards to forward-thinking cities
The National Organization on Disability (NOD) awards cash prizes each year to cities that implement programs to provide full access to and participation in community activities for people with disabilities.
Last year, Chicago won for efforts that included a home modification program for low- to moderate-income households with residents who have disabilities. Berkeley, Calif., shared the honors for programs that included free and reduced-fare accessible taxi service to people with disabilities.
West Hollywood was an earlier winner, in part for its Carrier Alert program. Postal carriers notify the sheriff if a disabled person’s mail isn’t picked up routinely. The city also made arrangements with its trash hauler to offer free walk-out service for property owners who aren’t able to take their trash cans to the curb for weekly pick-up.
Guidelines and entry forms for the 2007 Accessible America competition will be available online near the end of July. Contact the National Organization on Disability at (202) 293-5960.
150-plus new civic access agreements
The U.S. Department of Justice has now signed agreements with more than 150 local governments in all 50 states and Puerto Rico to ensure that people with disabilities have equal opportunities to participate in civic life.
As part of Project Civic Access, DOJ examines government facilities to ensure they fully comply with ADA guidelines. In addition to pointing out deficiencies, PCA offers technical assistance to help cities and counties comply, and the nonadversarial relationship seems to be producing good results.
Remedies that local governments agreed to implement include modifications to parking areas, sidewalks, entryways, hallways, meeting rooms, restrooms, drinking fountains, telephones, 9-1-1 systems access, service counters and other building aspects.
Rookie Lawyer Goes After ADA Violators
When it comes to businesses whose facilities aren’t ADA-compliant, Amy Champlin of Gulfport, Fla., doesn’t mess around.
Champlin, 24, received her law degree in December, took the bar exam in February and plans to launch a solo law practice in which she’ll specialize in “all aspects of disability discrimination — everything from disabled people’s divorce and child custody to ADA violations.”
She describes some of the ADA violations she encountered when visiting several businesses in her power wheelchair (she has Friedreich’s ataxia):
“Tire Kingdom — I could not get in the bathroom. New China Buffet — I could not get in the bathroom. International House of Pancakes — there was a step from the parking lot that led to an entrance ramp. Dog Training Club of St. Petersburg — the only access was through a dog run and 6 feet up a very steep ramp for dogs who couldn’t climb stairs.”
The results of her attempts to improve the situation?
“After receiving my letter, Tire Kingdom first called and tried to belittle me for wanting a bathroom. Eventually a different gentleman called me back to say the bathroom would be built.
“New China Buffet and IHOP were easy. I wrote the letter and they wrote back that it would be done. And it was.
“The dog training club gave my letter to their lawyer. I felt like they tried to drag their feet, but they did it, and the modifications were expensive.”
Champlin has a game plan for dealing with ADA violations. “The owner of the building/land is responsible for making sure the building is in compliance with ADA,” she says. “The first step is to find out who the owner is. Most county property appraisers have Web sites where this can be done.
“The second step is to write the owner a letter on professional letterhead, preferably sent certified mail, which scares people. I put details about the problem such as, ‘I have to roll through dog poop and go up a steep ramp to get in.’
“I give them a time frame to tell me how they intend to comply, and tell them that ‘appropriate action’ will be taken otherwise.
“That’s usually all it takes with a small business. If they scoff, I work with an experienced attorney to draft a lawsuit.
“Businesses come up with all sorts of excuses. ‘We were grandfathered in.’ ‘We are too old to need to comply.’ They are just excuses. Businesses have to comply.”
Champlin notes that most lawyers won’t ask for payment from someone with a disability filing an ADA lawsuit.
“Making a business become compliant is not a financial hardship.”
Disability Advisory Committees
Help Towns Change for the Better
Three years ago, Brian Moore, who has Duchenne muscular dystrophy, prepared and presented a proposal on his local access TV station, urging the town of Holliston, Mass., to create a disability advisory committee. His idea caught on and now, Brian, 22, and his father, James have been appointed co-chairs of the newly formed group.
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| NASCAR fan Brian Moore got a pleasant surprise at the track: newly accessible crew pits. |
Brian was motivated in part by his experiences in seventh grade. When he showed up at school in his wheelchair, he found that most of his classes were on the second floor. In Holliston, whose origins date to 1724, it wasn’t uncommon to find buildings, including schools, without elevators.
Now, the civic-minded Moores have helped bring about long-needed changes. Along with other Disability Advisory Committee members, they talked with Holliston’s business and government communities to find ways of renovating existing buildings, then made recommendations to the elected officials with the authority and pocketbook to make ADA-related fixes.
“The town has done a great job bringing public buildings into ADA compliance,” Brian says. Schools now have elevators, accessible bathrooms and classrooms that can accommodate wheelchairs.
Unfortunately, James says it’s not going as well with retail businesses in the center of town: “If a business remodels and spends more than 25 percent of the building’s value, they must bring the building into full ADA compliance. What many businesses do is perform a series of projects over time. That way, the ADA threshold is never hit, and they don’t have to spend money on ADA bathrooms and ramps. This is very frustrating for us as the entire center of town has new retail businesses that Brian can’t access.”
But the father/son team is chipping away at those barriers. Through the committee, they’re working with the town to completely reconstruct crosswalks, sidewalks, curb cuts and parking spaces for people with disabilities. Retail businesses are on the “to-do” list.
Brian is taking college-level courses at two schools, but when he isn’t studying or working on ADA issues, he’s focused on the Red Sox, Patriots and NASCAR. In recent years he’s seen ADA-friendly changes in sports venues, including the addition of elevated seating for wheelchair users in stadiums. Now, when frenzied fans leap to their feet in excitement, they don’t block the views of the fans seated in wheelchairs.
A high point in accessibility occurred this year at a NASCAR competition at Michigan International Speedway in Brooklyn. The track had recently acquired “stretch” golf carts with wheelchair access ramps. For the first time, a jubilant Brian got a lift down into the pits where race team crews get their cars ready, and visited one-on-one with some of his racing heroes. |
