AND NOW, THE UPDATE
Membership
We now have 995 members representing 47 states and Puerto Rico. We are also proud to claim members in Canada, Hong Kong, Australia. Our Board of Directors stands at 40, our Executive Committee at 8, our Attorneys represent 4 law firms and our Consultants number 6. We wish to express our appreciation of the fine work of all of these people, who, contrary to public opinion, DO put accessibility achievements ahead of fees. We who work here at “Access Now” every day can definitely attest to that! We also want to acknowledge here our debt to our Board of Directors and our Executive Committee for their support, their encouragement and their many kinds of contributions to our goals. Most particularly, we want to express our appreciation for the efforts of our First Vice-President, Marla Dumas, and the absolutely herculean contributions (for seven years!) of our former Treasurer, Miki Speijers, who remains on our Executive Committee, having been a charter member!
We want to recognize the accomplishments of our Treasurer, Estelle Michelson, another charter member of our Executive Committee. Estelle came forward when business commitments meant Miki could no longer continue as our Treasurer. Estelle assumed the duties of this very important office on short notice and did an excellent job. Now, mounting obligations on her time have precluded her from continuing as our Treasurer. We want to take this opportunity to thank Estelle for her selfless generosity to “Access Now” during a time of genuine need.
We would be quite remiss if we failed to mention the enormous contributions of our computer consultants, Gregory Arkin and Alain Ginzberg, without whom we would not be able to function! We also wish to express our gratitude to attorney Frank Herrera, who continues to serve as our legal consultant quite expertly and expeditiously on a totally pro bono basis. His efforts on behalf of “Access Now” have been, and continue to be, invaluable. Finally, I want to thank my assistant, Thomas Miller, for his efforts in making certain that the administrative aspects of the organization run smoothly and for undertaking the task of composing and typing the bulk of this newsletter.
A BRIEF OVERVIEW OF OUR LITIGATION
Since our April Newsletter (which you received in May), “Access Now” has made progress in settling cases in several states. “Access Now” has filed a total of 964 cases since its inception. Presently, there are 136 cases with Settlement Agreements still outstanding, requiring alterations or modifications which in several cases should have been completed by October 1, 2006, or later. (Cases involving hospitals and other large or complex facilities have post-settlement compliance completion dates much further in the future.)
During the past six months, “Access Now” has entered into 12 additional settlements to make properties A.D.A.-compliant. They include:
Hospitals 1
Government 1
Hotels 2
Restaurants 4
Schools 1
Sport Venues 2
Theme Parks 1
“Access Now” continues to become more national in scope. The 6 states in which cases have been settled range from the South and the mid-Atlantic to the Great Plains. Our headquarters state of Floridaaccounts for 17% of settlements over the past six months.
Alabama 2
Florida 2
Nationwide 1
Oklahoma 2
Pennsylvania 2
Tennessee 2
Virginia 1
We will keep expanding our geographical presence as best we can as we continue to receive requests for information and assistance from around the country and internationally. Please notify “Access Now” if you become aware of situations where access continues to be denied. We remain solidly in the forefront of the fight for accessibility.
The following is a brief listing of the cases that have been settled since our last newsletter:
Government
Lee County Parks, Fort Myers, FL
Hospitals
University of Tennessee Medical Center, Knoxville, TN
Hotels
South Seas Island Resort, Captiva, FL
Days Inn, Shillington, PA
Restaurants
McDonald’s (3), Midfield, AL
Arby’s, National Class Action
Denny’s (2), Wyomissing, PA and Fredericksburg, VA
Schools
University of Alabama, Tuscaloosa, AL
Sports Venue
Oklahoma City Fairgrounds, Oklahoma City, OK
Theme Park
Dollywood, Pigeon Forge, TN
NOTABLE CASES
There are some cases that are especially important because of their value as precedents or because they remove significant numbers or types of barriers. Several of those types of cases are listed below. Please remember that most defendants in non-class action cases insist on confidentiality as a condition of signing settlement agreements. Therefore, we cannot discuss those cases by name, although they number quite a few. However, several of them are included in the cases listed above.
Hospitals
The numbers of individual hospital cases that have been settled or are moving rapidly toward settlement continues to increase every week. The 19 Tenet Healthcare Corporation (Tenet) facilities listed immediately below (which encompass 2800 beds) had a consolidated Fairness Hearing on April 25th. We are awaiting the Court’s decision on whether to enter judgment.
Allegheny Regional Hospital, Low Moor, VA
Alvarado Hospital, San Diego, CA
Belleair Surgery Center, Clearwater, FL
Brandon Surgery Center, Brandon, FL
Community Hospital of Los Gatos, Los Gatos, CA
Fountain Valley Regional Hospital, Fountain Valley, CA
Gulf Coast Community Hospital, Biloxi, MS
Las Colinas Medical Center, Irving, TX
Outpatient Surgery Center, Boca Raton, FL
Nacogdoches Medical Center, Nacogdoches, TX
Piedmont Medical Center, Rock Hill, SC
Pinecrest Rehabilitation Hospital, Pinecrest, FL
Providence Memorial Hospital, El Paso, TX
Pulaski Community Hospital, Pulaski, VA
St. Christopher’s Hospital, Philadelphia, PA
Surgical Park Surgery Center, Miami, FL
Tampa Ambulatory Surgery Center, Tampa, FL
Tampa Eye Specialty Surgery Center, Tampa, FL
Westside Regional Medical Center, Plantation, FL
Another Fairness Hearing was held on September 19th involving the 10 Hospital Corporation of America (HCA) facilities that follow. We are awaiting the judge’s decision, which he indicated from the bench would be favorable to the proposed settlement. These facilities have over 1900 beds.
Reston Hospital Center, Reston, VA
New Port Richey Surgery Center, New Port Richey, FL
Parkland Medical Center, Derry, NH
Tuckahoe Surgery Center, Richmond, VA
JFK Medical Center, Atlantis, FL
St. Petersburg General Hospital, St. Petersburg, FL
John Randolph Medical Center, Hopewell, VA
Edward White Hospital, St. Petersburg, FL
Portsmouth Regional Hospital, Portsmouth, NH
Raulerson Hospital, Okeechobee, FL
We continue to be actively involved in cases involving medical institutions because of our strong belief that they constitute one of the best ways to enhance the quality of life of the disabled community.
City of Miami, Florida
With respect to this case, the defendant Florida Department of Transportation (FDOT) continues to meet its obligations in fulfilling its settlement commitments. In the year ending June 30, 2006, FDOT completed work implementing ADA improvements on 18 state highway projects within Miami-Dade County. In these projects FDOT created or replaced 610 ramps, 386 driveways (totaling 118,377 sq. ft.) and 308,781 sq. ft of sidewalks. The total cost of the 18 projects was $3,505,775. This represents a substantial increase from the previous report for the year ending October 31, 2005. Kudos to the FDOT!
City of Sonora, California
The city is working hard to live up to its promise to make all of its facilities, programs and services ADA-compliant. The City has contracted with MIG Consulting firm to rewrite and update its ADA Self-Evaluation and Transition Plan (the Plan). The Plan was approved at a city council meeting on August 21st. While Sonora has not become A.D.A. compliant on the timetable envisioned in the settlement, it is making steady progress. We continue to see Sonora becoming a municipality second-to-none in guaranteeing participation by its disabled community in the city’s activities and affairs.
Emory University
In this case, “Access Now” and member Kami Barker of Atlanta sued Emory University and its architects and engineers for denial of access in university housing projects. We settled with Emory for ADA and other accessibility violations. In August, 2006 we had a three-week jury trial before an Atlanta jury. THIS WAS THE FIRST TRIAL OF A CASE UNDER THE DESIGN AND CONSTRUCTION REQUIREMENTS OF THE FAIR HOUSING ACT. The jury rendered a verdict for “Access Now” and Ms. Barker on liability of the builders, Trammel Crow Residential, but against “Access Now” and Ms. Barker with respect to the architects, Niles Bolton Associates. The jury also awarded damages against Trammel Crow. The outcome was less than we had expected due to the Court’s having allowed into evidence the settlement agreement between Emory and “Access Now”, which, according to the jury, was a major factor in their decision. We have filed motions for a judgment notwithstanding the verdict and for a new trial. If they are unsuccessful we are contemplating an appeal. We will keep you informed as to any further developments in this groundbreaking case.
Norwegian Cruise Line, Ltd.
Pre-trial negotiations are continuing. Although it seemed like a settlement would not be achieved, things are looking up. We will let you know if we are successful. The trial is postponed until the outcome of the negotiations is known.
CLASS ACTIONS
Class actions affect a large number of disabled persons, usually because a large number of facilities are involved. We still have class actions pending against Victoria’s Secrets, T.J. Maxx, the cruise line industry and cases against five hospital chains which encompass many, many individual hospitals. These cases move slowly, but there is progress to report in two of them:
Arby’s
“Access Now” brought suit against Arby’s based on the A.D.A. non-compliance of approximately 773 of its restaurants in the United States, Puerto Rico and U.S. territories. Arby’s has agreed to remove architectural barriers in its restaurants, which will allow the disabled better access to this restaurant chain. U.S. District Judge Jose E. Martinez held a second Fairness Hearing in the case on June 14th. The judge approved the settlement on August 10th. This is a tremendous success for the disabled community. It allows us improved access in Arby’s restaurants in almost every corner of the country. This is the type of progress that advocates envisioned when the ADA became law. We will continue our fight for greater public accessibility in restaurants and other retail establishments across the United States.
Dollar Rent-a-Car
This case also includes Thrifty Rent-a-Car. Together they comprise the Dollar Thrifty Automotive Group (DTAG), a Fortune 1000 company with over 800 corporate and franchised locations in the United States. A consolidated Fairness Hearing before Judge Martinez on September 8, 2006, sought approval of the settlement that will require the defendants to make “Accessible Enhancements” to the public areas of their facilities, including shuttle and curbside services, to bring them into compliance with the ADA. Dollar and Thrifty also agree to make their electronic communication services (including the Internet) ADA-compliant. They will also “incorporate the availability and use of hand controls and other similar devices for disabled drivers.” This promises to be another case that brings substantial benefits to our community. We have every reason to believe the judge will rule in our favor.
HCA Hospitals
The case against the Ambulatory Surgery Center Group, Ltd. involves the 10 hospitals listed above. The Fairness Hearing was held on September 19th, and we are awaiting the judge’s decision.
Tenet Hospitals
There was a consolidated Fairness Hearing held on April 25th encompassing 19 Tenet facilities nationwide. Again, we are awaiting the judge’s decision on whether to approve the proposed settlement.
These hospital settlements will make a great difference to members of our community. THE 29 FACILITIES HAVE A TOTAL OF 4700 BEDS IN EIGHT STATES. The settlements show that the ADA can work when there are dedicated advocates and attorneys using it for our benefit.
NON-“ACCESS NOW” LITIGATION
We want to keep you informed about important recent litigation around the country, of which you might not be aware, as well as update information from April’s newsletter affecting the rights of the disabled. We think it is important for our members to keep abreast of successes realized by and within the disabled community, whether accomplished by “Access Now” or by other organizations. We are all in this fight together!
- In 2004 the U.S. 8th Circuit U.S. Court of Appeals issued a decision upholding Missouri’s right to charge people with disabilities a $2.00 annual fee for placards that would allow them to park in handicapped spaces against a claim that it violated the ADA. The case was appealed to the U.S. Supreme Court which vacated that decision in June 2005 and told the 8th Circuit to reconsider in light of two cases it had decided in the interim. Earlier this year the 8th Circuit decided that in light of the Supreme Court’s decisions, Missouri’s fee did amount to illegal discrimination in violation of the ADA. In doing so it joins courts that have invalidated similar laws in California, Colorado and Ohio. Klingler v. Director, Dep’t of Revenue, 433 F.3d 1078 (8th Cir. 2006).
- In a very interesting case, the 1st Circuit U.S. Court of Appeals decided that state and federal historic preservation laws do not trump the ADA when increased access to public transportation for people with disabilities is at stake. Historic preservation groups argued that the Federal Transit Administration had violated federal laws designed to preserve historic properties when it provided Massachusetts funding to make the Copley Square subway station compliant with the ADA. In doing so they argued that the Boston Public Library and the Old South Church, both of which are designated as National Landmarks and are listed on the National Register of Historic Places, would be harmed. The 1st Circuit found that the laws could be enforced harmoniously and that the ADA did not take a back seat to the preservation laws. Neighborhood Association of the Back Bay, Inc. v Federal Transit Administration, No. 06-1029 (1st Cir. 2006).
U.S. JUSTICE DEPARTMENT SUES FLORIDA COUNTY FORENGAGING IN DISCRIMINATION AGAINST PERSONS WITH DISABILITIES
WASHINGTON (June 30, 2006)—The Justice Department announced today that it has filed a lawsuit against Sarasota County, Fla. alleging housing discrimination against individuals with disabilities.
The complaint, filed in the U.S. District Court for the Middle District of Florida, in Tampa, alleges that the county refused to allow Renaissance Manor Inc., to operate six homes for individuals with mental illness and a history of substance abuse. The homes are intended to provide a supportive environment for residents, but are otherwise similar to other houses in the county inhabited by residents sharing living space and common facilities. According to the government’s complaint, the homes at issue are permitted to operate as a matter of right under the county’s zoning code, but the county determined that the homes violated the code because of the residents’ disabilities. The complaint also alleges that the county retaliated against Renaissance Manor by refusing to release grant funds it had been previously awarded.
“The residents of these homes should not be refused an equal opportunity for housing in their community,” said Wan J. Kim, Assistant Attorney General for the Civil Rights Division. “The Justice Department is committed to preventing such housing discrimination against people with disabilities.”
The suit seeks monetary damages to compensate the victims, civil penalties, and a court order barring future discrimination.
The federal Fair Housing Act prohibits discrimination in housing on the basis of race, color, religion, sex, familial status, national origin and disability. Since January 1, 2001, the Justice Department’s Civil Rights Division has filed 197 cases to enforce the Fair Housing Act, including 94 based on disability discrimination. For more information about the Civil Rights Division and the laws it enforces, go to www.usdoj.gov/crt .