JKSCHW at aol.com wrote:
> In a message dated 00-05-09 21:52:15 EDT, you write:
>
> << The reality is that when disabled people notify businesses they usually
> ignore us. Most every disabled person I know sends a letter asking the
> business to comply but then more often than not, nothing happens. >>
>
> In which case, the Dirty Harry amendment, if it passes, ought to make little
> or no difference, right? At least as described.
>
Justin,
It does make a difference. It presents disabled people with another obstacle to access to the courts when it is business which is responsible to follow the law in the first place. I don't think enforcing these laws should be the burden of disabled people but because of the mound of stupidity and resistance out there, it often is. Frankly, if a disabled person has to get a lawyer they deserve anything they can get.
This letter from an attorney who is deaf explains the situation more fully in a letter written to Congressman Foley's aide.
-- Marta
Frederick A. Shotz ADA Consulting Associates
Dear Elizabeth;
When I met with Congressman Foley last week he asked that I work with you to see if language could be developed that would address the issue of some lawyers abusing the ADA without placing a burden on people with disabilities or limiting our access to the federal court. This e-mail is for the purpose of starting that dialogue.
I am not offering language to you at this time but rather, trying to lay the foundation of understanding that we need to have in order to determine if such a bill is reasonable. I have been looking at the issue of compliance with the requirements of the ADA with the goal of breaking compliance down into exclusive categories. Here is what I have come up with:
1. New construction - I would not think that Congressman Foley sees a need for pre litigation notice or waiting periods for facilities constructed subsequent to the effective date of the ADA. All such properties had to have a licensed design professional develop the plans for these facilities. Such design professionals (architects and engineers) are required by their licensing to make sure that their projects meet all requirements of law, including the ADA. Such buildings have also gone through plans review by the local building department as well as inspection before a certificate of occupancy is issued. Title III of the ADA does not call for "readily achievable barrier removal" in such facilities but for full compliance with the requirements of the ADA Accessibility Guidelines (ADAAG). Limiting litigation in such a facility would be like limiting litigation against a building owner who did not bother to install fire alarms or where the elevators failed to meet the ANSI requirements. Such a building owner has recourse against the architect and/or general contractor for such errors and omissions.
2. Additions to existing facilities - The same issues apply here as in the issue of new construction. Additions to existing facilities must be permitted and inspected. A design professional must sign the plans as meeting all relevant laws and codes, including the ADA. Here again, the requirement is for full compliance within the added portion of the facility, not just readily achievable barrier removal.
3. Alterations to existing facilities - Here is where things get more complicated. When a facility is altered, the alterations must be permitted and inspected just as in additions and in new construction. However the standard for complying with the ADAAG is less stringent. In alterations of existing facilities the ADAAG states "No alteration of an existing element,space, or area of a building or facility shall impose a requirement for greater accessibility than that which would be required for new construction." The same section of the ADAAG goes on to say, "...the modifications shall be done in compliance with these guidelines unless technically infeasible." The ADAAG also states, in addressing alterations of existing facilities, "No alteration shall be undertaken which decreases or has the effect of decreasing accessibility or usability of a building or facility below the requirements for new construction at the time of alteration." While this mixed bag of regulations may seem confusing on the face it actually, to a design professional, is very clear. Alterations of existing facilities must meet the new construction standards of the ADAAG unless doing so is technically infeasible. Litigation in such a situation would concern an alteration not meeting the new construction standards through a decision made by the design professional and the facility owner.
4. Accessible route improvements - This issue applies to both additions to existing facilities and alteration of existing facilities. When such construction work is undertaken the ADA requires that architectural barriers along the accessible route from the unaltered portion of the facility to the altered portion of the facility must be removed through alteration. This portion of the law is there so that a new or altered portion of a facility can not be constructed with no way for people with disabilities to get to or use than added or altered portion of the facility. The ADA puts a limit on how much barrier removal must be performed in such a situation. That cap is 20% of the overall costs of the addition(s) or alteration(s). Again we have a situation where a licensed design professional is involved in the project and agrees in writing that all relevant laws and codes are being met. An error or omission on the part of such a design professional would be the cause of such a violation unless the building owner refused to do the work required by the ADA.
5. Architectural Barrier Removal in facilities of multi-facility companies - Many companies with multiple facilities such as hotel chains, movie theater chains, restaurant chains, hospital corporations, etc., have the responsibility of removing architectural barriers at their places of public accommodation when such barrier removal is readily achievable and technically feasible. We are now speaking of large corporations with property development officers, legal departments, and, in many cases, full time design professionals on staff. In many of these companies the decision has been made to address the requirements of the ADA in a reactive rather than proactive manner. Only when a serious complaint, threat of litigation, or actual litigation occurs will such companies address the requirements of the ADA; and then, only at the facility which is the subject of the complaint. An example is Federated Department Stores which lost in trial over the barriers at the San Francisco flagship store and then refused to follow the requirements of the court imposed on that store at any of their other stores. At this time more than 140 Federated stores are facing litigation as a result of the position taken by Federated Department Stores.
6. Architectural Barrier Removal in facilities owned by corporations - These facilities are often owned by individuals who have formed corporations through which the business operates. Some such facilities, Pro Player Stadium in Miami for example, can not be considered small businesses. Other such facilities, such as a local video tape rental store that is not part of a chain, can be considered to be small businesses. The owners of such facilities have demonstrated a degree of legal sophistication through the formation of a corporate entity which can provide tax benefits to the owner(s) as well as providing protection of the assets of the individual owners through the corporate veil. Such owners have the legal knowledge, or the support of lawyers and accountants, to cope with corporate tax responsibilities, collection and payment of sales taxes, and the many responsibilities of operating a registered corporation. In such a business operation corporate positions such as president and treasurer must be filled. Meeting of the board of directors must be held. Corporate minutes must be maintained, reports must be filed with the Secretary of State on an Annual basis.
7. Architectural Barrier Removal in facilities owned by limited partnerships - Facilities owned by limited partnerships are usually far from the "mom and pop" type of operations owned by an individual and family members. Such business operations are often formed by real estate developers for the tax benefits derived from such ownership strategies. These partners, or at the least the operating partner, are usually professional business people operating multi-million dollar businesses. The operating partners are typically highly sophisticated and know their way around the legal and political systems. An example of such partnerships is the limited partnerships that own many of the large shopping centers in south Florida. Shopping centers such as the one mile long Oakwood Plaza in Hollywood Florida and the large Cypress Creek Station in Fort Lauderdale Florida are owned by limited partnerships formed by Michael Swerdlow following the construction of these shopping centers by the corporation, Michael Sewrdlow Companies.
8. Architectural Barrier Removal in facilities owned by small partnerships and individuals - Facilities owned by partnerships formed by family members or friends as well as sole proprietorships are typically small businesses with one or a small number of facilities. While the owners of such businesses may have extensive business and legal knowledge, it is just as likely that such business owners know little of the legal requirements of operating a place of public accommodation. It is difficult to paint this group with a broad brush. Small business owners can range from people who have left the large corporate climate to strike out on their own, people with extensive knowledge of the legal issues of operating a business, to individuals following their dream of business ownership and self employment. The owner of three movie theaters in Fort Lauderdale is one example of such business ownership as is the owner of a small natural food restaurant in Hollywood. Some such business owners would have limited knowledge of their responsibilities under laws such as the ADA.
As the above break down demonstrates, most businesses which own and/or operate places of public accommodation should be expected to have knowledge of the requirements of the ADA and should be in compliance with those requirements. There is no excuse for any facility which has been constructed or altered following the effective date of Title III of the ADA to not be in compliance with such requirements. These businesses have been successful enough to engage in the expense of facilities alterations, additions, or construction and they have had the benefit of employing design professionals who are responsible under law for meeting the requirements of the ADA Accessibility Guidelines. It is difficult to form a rational basis for excusing such businesses for their failures to meet the requirements of the ADA.
The accessible route improvements which are required by Title III of the ADA when a facility is altered or an addition is constructed is at the very heart of the equal access goal of the ADA. By ignoring this requirement businesses have been able to improve their facilities while continuing to discriminate against people with disabilities. To excuse such behavior would be like excusing a large business for forgetting to pay collected sales taxes to a state or not keeping up with changes in the IRS requirements. When the Breakers Hotel spent in excess of $14 million on renovations but did not bother to provide an accessible front desk, an accessible path of travel from the lobby to the hotel restaurants, or accessibility to their recreational amenities they violated the ADA. I don't think anyone could say that the owners of the Breakers, their lawyers, and their design professionals were all simply ignorant of the law. It is much more realistic to believe that they choose to not spend the more than $2 million required by the ADA for this barrier removal as a financial business decision. Requiring advance notice of litigation and a waiting period before litigation could be filed in such cases is tantamount to a grace period of forgiveness for their willful violation of the civil rights of people with disabilities.
When Joe Robbie Stadium was altered and improved so as to provide a dual use stadium, with the beginning of professional major league baseball in south Florida, millions of dollars were spent. New "Batters Box" seats were constructed behind home plate and "field boxes" were constructed by first and third bases. In total more than 15 million dollars were spent on alterations of the stadium. When that work was done access to the new seating areas for people with disabilities was not provided. The seats beyond left field and in left-center field were also newly added seats that can be retracted for baseball and extended for football. No wheelchair accessible seating was provided when these new seats were installed (several thousand seats). Additionally, no architectural barrier removal was performed anywhere on the site or within the facility concurrent with the alterations. I worked for Joe Robbie Stadium as their ADA consultant. When the budget for architectural barrier removal was used to advertise the teams, in response to low ticket sales, I resigned from that position. This facility, owned by an individual through a corporation, had full knowledge of their responsibilities under the ADA. No claim of ignorance could be made by ownership or management. This example is, with the exception of the large dollar amounts, not at all untypical of the attitude towards ADA compliance by many companies.
Even when a corporation is simply a tax strategy by an individual who owns a business, the legal complexities of forming and maintaining a corporation are greater than the complexities of meeting the requirements of the ADA Accessibility Guidelines. The believe that a person who is able to run a corporation and the business owned by the corporation could be ignorant to the requirements of the ADA is untenable. Only by not wanting to know about the requirements of this law and purposefully ignoring the rights of people with disabilities can such a business owner honestly state that s/he was not aware of being in violation of the ADA.
Limited partnerships, by their very legal structure must have, as general partners, people with knowledge of the legal requirements of operating a business. These are not mom and pop businesses. The limited partnership that owns Cypress Creek Station has been actively fighting an ADA lawsuit against them as though it was a war. The fact that the facility was constructed with numerous violations of the ADA Accessibility Guidelines is not important to the partnership or their lawyers. Their only goal in the litigation is to fix as little as possible and to litigate the case to death in the hope that the plaintiff lawyers, who do not get paid for their work until the case is settled or tried, give in and accept less than what the law requires. Unlike an owner operated business that wants to do the right thing, this limited partnership, and many others like them, sees the ADA as an expense to be avoided, complied with only when forced, and then only as much as they are forced to comply.
This gets us to the only group of businesses that may make a truthful statement when they say that they did not know that they were in violation of the ADA. The partnerships of friends and family and the sole proprietorships are the businesses that are least exposed to lawyers and design professionals who could tell them of their responsibilities. Many such businesses have been in existence since before the ADA became law. Many such businesses rent their facilities and have no knowledge of the technical requirements of the ADA Accessibility Guidelines. (Of course their landlords who are also responsible for compliance with the requirements of the ADA are often large property owners will full knowledge of the law.) But, even with these businesses, it is not possible to say that they are all without knowledge of their civil rights violations. The first legal action I ever took under the ADA was against my family doctor. I took action, a complaint filed with the U.S. Department of Justice, only after my requests and demands for a ramp at the entrance door were ignored and the physician then refused to treat me and my wife because I had complained about the lack of a ramp. It would be difficult to argue that this small business person was ignorant of the law. I changed dentists a year ago after my dentist refused to provide a ramp at his entrance, a lever door handle, and a treatment room with room for me to transfer from my wheelchair to the treatment chair. I did not sue this small business person as my wife did not want to have to change dentists. It would be difficult to argue that this small business person is unaware of the requirements of the ADA but he is still in violation of the law though the needed alterations have not been made in the 18 months since I first complained.
I have had owners of restaurants tell me that they will remove architectural barriers "when someone makes me." I have heard the same comment from many other owners of small businesses ranging from seafood retail stores, to pawn shops, to movie theaters. If we are going to "protect" small businesses, or any businesses, from abusive litigation we must first figure out who it is that deserves such protection. I do not have that answer at this time. I know from the thinking that went into writing this to you that a distinction needs to be made between various sizes of businesses based, in part, on their access to legal and architectural professionals and the sophistication of the business owner(s). There would seem to be no question that a clear difference needs to be made between new, altered, and enlarged facilities compared to barrier removal at unaltered existing facilities. I also feel that a distinction needs to be made between small business owners with no knowledge of the law and small business owners who are only interested in doing that which they are forced to do.
In many cases it is these small businesses that create the biggest problems for people with disabilities. When the local clothing store, the local drug store, the local dry cleaner, etc., is inaccessible, a person with a disability, who often can not drive, is forced to find more distant businesses that are accessible. It is the small business owner who too often tells a wheelchair user that their wheelchair is in the way of other customers in a small store. It is the small business owner who often will tell a person with a disability with a service dog "I won't have dogs in my store." It is the small business owner who will often fail to remove architectural barriers and then claim to be too short staffed to provide reasonable accommodations to people with disabilities faced with the architectural barriers.
I hope that you will put some thought into this issue so that we can find a way to define the small segment of the business community that may deserve some breathing space from the time that ADA violations are identified until litigation is filed. Once we define who may need such protection it may be easier to develop the parameters of such protection.
I want to conclude this rather long letter by reiterating that I do not feel that any amendment of the ADA is needed. I support a bill that would establish a tracking data base of ADA litigation so that problems can be identified. I also support any efforts that can be made on the part of members of Congress to have state legislatures pass bills that would empower local governments to enforce the requirements of the ADA. If businesses were informed of their ADA violations at the time of fire inspections and/or other code inspections there would not be any business owners in the dark concerning the requirements of the ADA. Something as simple as a notice of ADA compliance requirements included in annual occupational license renewal forms would put business owners on notice of their responsibilities under this civil rights law. In spite of my continuing belief that amending the ADA is unnecessary I continue to be willing to work with you on developing language that would be acceptable to people with disabilities, if such a goal is possible.
Sincerely yours,
Fred
-- Frederick A. Shotz ADA Consulting Associates
Leading The Way To Equal Access For People With Disabilities