Newsletter – June 2007 (page 2)

AND NOW, THE UPDATE:

Membership

We now have 972 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 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.  Above all, our deepest appreciation to the attorneys and consultants who handle all our cases.  Contrary to public opinion, they DO put accessibility achievements ahead of fees.  We who work here every day at Access Now^®   can most definitely attest to that!

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!  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.

Finally, you may have heard that we have received our Florida and our U.S. trademark registrations for Access Now^®.  Attorney Frank Herrera has provided invaluable pro bono assistance in achieving this milestone.  Once again, we wish to express our gratitude to Mr. Herrera.  The result of his efforts is the successful culmination of our multi-year effort to protect the Access Now^® name.

A BRIEF OVERVIEW OF OUR LITIGATION

Since our December Newsletter, Access Now^® has made progress in settling cases in several states.  We have filed a total of 964 cases since our inception.  Presently, there are 136 cases with outstanding Settlement Agreements, requiring alterations or modifications which in several cases should be completed by July 1, 2007, 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 31 additional settlements to make properties A.D.A.-compliant.  They include:

Hospitals                                   28

Government                                1

Sport Venues                              1

Stores                                          1

Access Now^® continues to assert itself nationally in scope.  The 10 states in which cases have been settled range from the South and the mid-Atlantic to the Great Plains and Pacific shore.  Our headquarters state of Florida accounted for 29% of settlements over the past six months.

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 us 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

Florida Department of Transportation, St. Augustine, Florida

Hospitals

Additionally, a settlement hearing was held on June 13^th in the U.S. District Court for the Northern District of Texas in Dallas regarding the following Crestwood Healthcare, L.P. hospital cases:

The judge took these cases under advisement, and we expect a favorable decision in the near future.

Sports Arenas

Lazy E Arena, Guthrie, Oklahoma

Stores

Dollar General Stores (5) in the cities of Enid, Gore & Stillwater, Oklahoma

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 in the prior section (which encompasses over 5300 beds) had Fairness Hearings held on April 25^th and May 18^th.   A Fairness Hearing was held on June 13, 2007, regarding nine more medical facilities in Texas and Alabama.  We are awaiting the Court’s decisions on entering judgment.

We continue to be actively involved in cases involving medical institutions because of our strong belief that they constitute one of the most important ways to enhance the quality of life of the disabled community.

We want to give much deserved praise to the firm of de la O, Marko, Magolnick and Leyton, and particularly to their associate, Charles D. Ferguson, for their stellar work in pursuing all the hospitals listed above and many others still in the pipeline!

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 ADAimprovements 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.  Our attorneys recently received a full self-evaluation and transition plan from Sonora’s attorney.  Our attorneys and our local expert are thoroughly evaluating the plan.  Their initial view is that the plan appears comprehensive, and the City is in the process of modifying its properties consistent with the plan’s parameters.  This is another step in Sonora’s realizing its desire to become a community that guarantees the opportunity for participation by its disabled community in the city’s activities and affairs.

Emory University

In this case, “Access Now”^® and member Kami Barker 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.  After a trial in August, 2006 before an Atlanta jury, a verdict for liability and damages was returned against the builders, Trammel Crow Residential, but not against the architects, Niles Bolton Associates.  The outcome was less favorable than we had expected, and we filed post-judgment motions that have yet to be decided.  If they are unsuccessful we are contemplating an appeal.  We will keep you informed as to any further developments in this groundbreaking case (the first jury trial under the Fair Housing Act.)  Many kudos here to Matthew Dietz of the law firm of Matthew W. Dietz, P.L., for his diligent pursuit of this particularly difficult and complicated case!

Busch Gardens

The Anheuser-Busch Company continues to move forward in its trail-blazing manner in bringing its facilities into compliance with the A.D.A.  In one of our recent newsletters we told you about the magnificent work they have done at SeaWorld in Orlando,Florida.  On May 24th we were delighted to be treated to a video presentation of what they have accomplished at their huge and famous Busch Gardens in Tampa, Florida.  They have not only met the standards, they have exceeded them in several instances, using imagination and “thinking outside the box”.

Once they were launched into the accessibility sphere, they moved ahead with self-motivated initiative, under the supervision of one of the nation’s most outstanding A.D.A. architect/consultants, and they have succeeded in making Busch Gardens a model of accessibility.  The Busch company’s enthusiastic embrace of A.D.A. compliance issues has been exemplary and gratifying.  We hope our members will avail themselves of and enjoy all that is offered at their theme parks.  (in this case kudos are due to Gregory Schwartz, our attorney in this matter, of the law firm of Schwartz, Zweben & Slingbaum, LLP and Larry M. Schneider, AIA, the consultant mentioned above, for their fine and diligent work!)

Access Now, Inc.^® also filed suit in Washington State as reported in the following article.

Lawsuit by Access Now, Inc.^® claims Vancouver violating disability laws

By David Bowermaster

Seattle Times staff reporter

The city of Vancouver, Wash., has been sued in federal court for a long list of alleged violations of the Americans with Disabilities Act and other statutes.  Access Now, a national civil-rights group based in Florida, filed the lawsuit on behalf of Michelle Beardshear, a 26-year-old Vancouver resident and a paraplegic who must use a wheelchair to get around the city.

The suit contends that many Vancouver streets, sidewalks and structures are insufficiently accessible to people with disabilities. Consequently, the suit claims the city has violated Washington state laws against discrimination, as well as the federal Rehabilitation Act of 1973 and the Americans with Disabilities Act (ADA), which was enacted in 1990.

Ted Gathe, Vancouver city attorney, said Thursday he could not comment because he was not aware of the lawsuit.  “Apparently the city has not been served, or if it has, the suit hasn’t made its way to my office,” Gathe said.

Catherine Chaney, a Seattle-based attorney who is serving as local counsel for Access Now, filed the suit Wednesday in U.S. District Court in Tacoma.  Neither Chaney nor Stephan Nitz, a Florida-based attorney for Access Now, could be reached for comment.

The lawsuit cites federal rules that require “newly constructed streets, roads and highways” to contain curb ramps or slopes, as well as ADA guidelines on everything from signs at parking spaces to grab bars in restroom stalls.  “The city of Vancouver has discriminated … by denying plaintiffs the use and benefit of the sidewalks, streets, intersections, public parks, facilities and parking within the city,” the suit claims.

Public facilities specifically mentioned in the lawsuit as violating the ADA include Vancouver’s City Hall, Police Department, two public libraries and four city parks.

David Bowermaster: 206-464-2724 or dbowermaster@seattletimes.com

Copyright © 2006 The Seattle Times Company

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.

We recently completed our first post-settlement inspections of the Arby’s in Orlando and Indianapolis.  Our attorneys and experts will be receiving the first set of remediation plans shortly, and they will be conducting more post-remediation inspections shortly thereafter.   We will continue our fight for greater public accessibility in restaurants and other retail establishments across the United States.  Here, all due praise goes to Josh Entin and Bob Switkes, of the firm of Rosen, Switkes and Entin, PL.

Dollar & Thrifty Rent-a-Car

On December 7, 2006, a Miami federal court judge approved a heavily negotiated class settlement agreement and consent decree with Dollar and Thrifty rental car companies (now consolidated in a 2006 merger).  The settlement agreement contemplates the most comprehensive accessibility program ever implemented in the rental car industry with what is believed to be the third largest rental car company in the United States.  The agreement contemplates remediation of all Dollar/Thrifty owned or operated facilities, accessible transportation from airports to vehicles, accessible vehicles for disabled drivers and anticipated policies and procedures to operate in tandem with the physical barrier removal program.  The settlement is being implemented and is expected to be completed within 5 years.  This case was a cooperative effort between Access Now^® and Fred Shotz, who is an individual named plaintiff in the case and founder of a sister organization, All Disabled Americans.  Fred’s tireless efforts were instrumental to the outcome, and he is owed a debt of gratitude by all travelers with disabilities.

HCA Hospitals

The case against the Ambulatory Surgery Center Group, Ltd. involves 10 of the hospitals listed above.  The Fairness Hearing was held on September 19^th, and we are awaiting the judge’s decision.

Tenet Hospitals

There was a consolidated Fairness Hearing held on April 25^th encompassing 19 Tenet facilities nationwide.  Again, we are awaiting the judge’s decision on whether to approve the proposed settlement.

Triad Hospitals

The case against the Ambulatory Surgery Center Group, Ltd. involves the 10 hospitals listed above.  The Fairness Hearing was held on September 19^th, and we are awaiting the judge’s decision.

These hospital settlements will make a great difference to members of our community.  THE 29 FACILITIES HAVE A TOTAL OF 5300 BEDS IN EIGHT STATES.  The settlements show that the ADA can work when there are dedicated advocates and attorneys using it for our benefit.

LITIGATION BY OTHERS

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 December’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!