Q. I am a wheelchair user in a town with fewer than 50,000 people. I have a lot of problems accessing local businesses and restaurants, with many acting as if access laws are not in existence, or do not apply to them. Barriers include step entries, door handles that I cannot grasp, doors that require too much pressure to open and, for those businesses that I can enter, restrictive seating and inaccessible restrooms.
Unfortunately, I am not alone in my concerns, as many of my friends who use wheelchairs or other mobility devices, or even those who are blind, face similar problems when seeking accommodations or trying to frequent said businesses. I am not a shy person, so when I run across these problems I try to bring them to the attention of the business owner or manager. I try to demonstrate the problems I encounter and recommend solutions that will improve, or create, the access my friends and I need.
We have discussed filing complaints or taking an egregious violator to court, but are wary of what might happen to us in this smaller community. I have read about other people and their attorneys who file these types of complaints and how they are branded negatively in the local press and sometimes even prevented from bringing subsequent lawsuits in front of those same judges. My friends and I don’t want to go through that, as it would seem to put us at risk of being branded as “troublemakers.” We only want to exercise our right to access and enjoy the society we live in.
Our latest concern is legislation being considered by Congress that would seem to take away our ability to sue or get access created in a timely manner when it comes to ADA violations [HR 620, which passed the U.S. House of Representatives]. Worse yet, I hear that similar legislation is being drafted to present to our state assembly that would cover our state’s access laws as well as the ADA. While we hope these bills do not become laws, my friends and I are trying to decide how best to gain the access we need here at home. We’re currently talking about taking this on as a group, so that several perspectives can be addressed. That might also make it a bit harder for the media to accuse any one of us of simply making trouble without having a valid complaint. Do you have any suggestions about the best way to go about this? Do you think this approach might work?
— Frustrated, and parked at the doorstep
A. Your concerns are definitely valid, and widespread throughout the disability community. The types of businesses that you have mentioned are classified as public accommodations since they sell or rent goods or services to the public. They are covered by Title III of the Americans with Disabilities Act and in many state civil rights laws or building codes that are “substantially equivalent” to the ADA. Public facilities that are owned by the city, county or state should not be overlooked, either. Even though much of what these government entities do is covered by Title II of the ADA, they need to comply with the same architectural guidelines. That would include such features as transit stops, the city hall, recreation centers, parks, curb ramps, sidewalks and municipal parking garages.
I have not heard of anyone using the type of approach that you are considering, except in major class action lawsuits that include a large number, or class, of plaintiffs who are disabled. Your idea makes sense but would require some preparation on the part of you and your fellow team members. Taking this on without being fully prepared will simply result in disappointment if someone accuses you of making recommendations that are not within the law or that would not hold up in front of a judge or jury.
If your goal is to correct the conditions, here are the steps that I consider important. Please remember that these are simply a layman’s recommendations, and not derived from any other source:
- Assure that those who join you in this endeavor can provide multiple perspectives. As one example, it would not be helpful if you only considered access for people who use wheelchairs and ignored conditions at the same location that might impact people with vision loss.
- Learn the applicable laws and regulations, state and national, and how to determine if features are out of compliance with either. Find someone with real experience working with the architectural guidelines, and get them to train you about how to take measurements and record what you find. It is best if the person tutoring you has received some formal training about the requirements.
- Watch for features that might have been changed after they were approved by a building code inspector or public works department. This might include parking facilities that do not have enough overhead clearance to allow access with a raised roof vehicle. You will also find that once constructed, it is not unusual to find property owners who change parking lot striping and, in the process, remove or diminish the number or size of the required accessible spaces.
If the property was constructed after the effective dates of the ADA or state laws, include the city or county authorities in whatever complaint or lawsuit might occur. They have a responsibility to approve the plans prior to construction and also to follow up to make sure that structures follow approved plans.
The ADA Architectural Guidelines, as well as many state building codes, are readily available online. Printing out a copy of the sections that cover what you find and providing them to the property owner or business that is out of compliance will not take that much time.
In those instances where there is an applicable state law, you may hire an attorney and sue in a state court. State civil rights laws may allow the payment of an award to the plaintiff, plus attorney’s fees. You can check that out through the state’s National Disability Rights Network office or a knowledgeable attorney.
As I have explained in previous columns, the U.S. Department of Justice, as the top law enforcement agency in the country, can take action against entities that are the subjects of ADA violation complaints. The steps the DOJ takes may include civil action in a federal court, but its primary goal is to eliminate the recurrence of those violations through arbitration or mediation. Settlements have been reached in many DOJ cases, and these are available for reviewing on the DOJ’s ADA website.
It is important that you file a DOJ complaint along with whatever other action is taken. Without a record of multiple complaints, the DOJ cannot assume that these violations are a pattern or practice within the industry. Good luck with your plan, and let us know how it works out.