Newsletter – June 2009 (page 2)

AND NOW, THE UPDATE

Membership

We now have 958 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 goes to the attorneys and consultants who handle all our cases.  Contrary to what is widely believed by the public, these are professionals who, although they earn their livings, in part, through these efforts, are primarily attracted to this work by their belief in and dedication to our mission!

Finally, 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!  Above all, I want to express my everlasting gratitude to my assistant, Thomas Miller, for undertaking the task of composing and typing the bulk of this newsletter.  I couldn’t do it without him!!

A BRIEF OVERVIEW OF OUR LITIGATION

Since our September Newsletter, Access Now^® has made progress in settling cases in several states.  We have filed a total of 974 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, 2009, 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 16 additional settlements to make properties A.D.A.-compliant.  They include:

Hospitals                                15

Transportation                         1

Access Now^® continues to assert itself nationally in scope.  The 7 states in which cases have been settled in the last six months range from the Southeast to the Pacific shore.  Our headquarters state of Florida accounted for 12.5% 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:

Transportation

Cunard Line, Limited             Miami, FL

Hospitals   (# of beds

Below is an article about our law firm responsible for these cases.

ADA lawsuit forces changes at Wesley Medical Center

BY KAREN SHIDELER

The Wichita Eagle, Posted on Friday, Mach. 13, 2009

Wesley Medical Center will make hundreds of changes – most of them minor – to its facilities over the next few years as part of a settlement in a class action lawsuit over accessibility. The lawsuit was filed in Florida about eight years ago against HCA, which owns Wesley. All of HCA’s 165 hospitals and 112 outpatient centers are part of the lawsuit.

Miami attorney Miguel de la O said Wesley was not one of the HCA facilities originally involved. De la O and his law firm represent ADA Access Now and other plaintiffs in the lawsuit. Wesley and nine other HCA properties, including Overland ParkRegional Medical Center and Menorah Medical Center in Overland Park, are in the latest round of proposed settlements.

The settlements include anyone with any kind of disability who has sought or will seek access to HCA properties. No monetary damages are being paid. “To HCA’s credit, they really partnered up with our client” and agreed to remove all architectural barriers found by inspectors, de la O said.

He said inspectors have been going over HCA properties inch by inch and noting changes that need to be made. Once the barriers have been identified and remedies suggested, they’re listed in a proposed settlement that then is subject to a court hearing. An April 17 hearing in Miami is set for the latest 10 properties. In Wesley’s case, the proposed changes fill more than 200 pages. They include items such as courtesy phones that don’t have volume controls; grab bars that are too high in Health Strategies locker room showers; a lack of Braille signs in a Birth Center play area; and grasp-and-turn doorknobs in the Wesley Medical Towers building. Each doorknob, grab bar and other barrier is listed separately, which is why the list is so long.

Wesley spokesman Paul Petitte said the medical center has several years to correct the problems but “we’ll get it done much more quickly than that.” He said work would start as soon as the settlement agreement is approved. As de la O did, Petitte noted that the settlement had been a cooperative process and that HCA was making every effort to comply with the Americans with Disabilities Act.

De la O said about three-quarters of the HCA properties already have been through the process. “We’re near the end,” he said. “I think we may have a handful of facilities to still inspect.”

The law firm and ADA Access Now have filed similar lawsuits against other hospital chains, including Tenet Healthcare and Catholic Healthcare West.

Reach Karen Shideler at 316-268-6674 or kshideler@wichitaeagle.com

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

We continue to make significant progress in this area.  The total of 15 Tenet Healthcare Corporation and Hospital Corporation of America (HCA) facilities listed in this newsletter brings to 147 the total adjudicated at Fair Hearings over the past two years.  The 15 facilities have a total of 3,100 beds in seven states.  As a consequence, over 27,000 beds have now been made accessible or are in the process of being made accessible because of our legal action.

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.  These hospital settlements will make a great difference to members of our community.  The settlements show that the ADA can work when there are dedicated advocates and attorneys using it for our benefit.

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

(Again, we direct your attention to the article above.)

Cunard Line, Limited

This case represents the culmination of another cruise line case in the aftermath of the Supreme Court’s 2005 Spector v. Norwegian Cruise Line Ltd. case stating that the A.D.A. applies to foreign flag cruise ships that depart from and return to United States ports.  The Cunard Line case is especially important since the Cunard brand is under the Carnival corporate umbrella with many well-known names in the industry, including Carnival Cruise Lines, Holland America Line, Princess Cruises and Seabourn Cruise Line in North America.  The settlement encompasses the Queen Elizabeth 2 and the Queen Mary 2, two of the most notable ships afloat.

Emory University

Access Now^® and member Kami Barker sued Emory University and its architects and engineers for denial of access in university housing projects.  On March 2, 2009, the U.S. Court of Appeals for the 11^th Circuit upheld the district court’s decision that the designer of the Ms. Barker’s on-campus housing complex at Emory University had not violated the FHA but that the builder of the complex had committed FHA violations.  While we are disappointed not to have prevailed on appeal, this victory with respect to the builder will serve as a foundation for future forays into this legal arena.  In connection with the cruise line cases and the Emory University case, all kudos to our attorney, Matthew Dietz.  We also wish to acknowledge the outstanding work of two additional firms with which we work;  Schwartz, Zweben, Zwilling and Rosen,  Switkes and Entin.

OTHER LEGAL MATTERS

We want to keep you informed about important recent litigation around the country, of which you might not be aware, as well as to update information from previous newsletters 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!

Deaf Woman Wins Discrimination Case against Hospital

By Theo Karantsalis

MIAMI — A deaf woman who waited two days before receiving proper care won a discrimination lawsuit against a hospital in Palm Beach federal court.  Pennie Fuller, 40, who is deaf, cannot read and uses sign language to communicate, alleged that Wellington Regional Medical Center intentionally discriminated against her based on her disability.

Fuller was rushed to the emergency room at Wellington in May 2004 after fracturing her knee and waited two days in extreme pain because the hospital did not have access to a qualified sign language interpreter, according to the complaint filed on Dec. 21, 2005.  When Fuller used the call button to get the attention of the hospital staff, they “would attempt to respond on the intercom,” according to the complaint.  Fuller alleged she experienced humiliation and discrimination in violation of her civil rights.

On Dec. 18, a jury awarded Fuller $76,400 to compensate her for physical and mental pain and anguish as a result of the discrimination by Wellington.  “Hospitals are required to provide qualified sign language interpreters when necessary to ensure effective communication with individuals who are deaf,” said Matthew Dietz, Fuller’s co-counsel and a disability rights attorney based in Miami.  “The deaf community is entitled to have the same quality of care and treatment as the hearing community.”

ADA lawsuit settled, city to make repairs

Tuesday, March 3, 2009

MIAMI – A disabled man settled a lawsuit filed in Miami federal court against the city, county and state over access to roads near his home.  The lawsuit, filed September 22, 2008, alleged that Theo Karantsalis, 47, a librarian who suffers from multiple sclerosis, was being “denied full, safe and equal access” to sidewalks and bicycle paths in Miami Springs in violation of the Americans with Disabilities Act (ADA).

Karantsalis, acting as his own attorney, negotiated individual settlements with attorneys from the city of Miami Springs, Miami-Dade County and Florida’s Attorney General.  On February 23, 2009, Miami Springs city leaders announced plans to comply with the ADA that include creating a Disability Advisory Committee, conduct a self-evaluation plan, and install sidewalks along Ludlum Road.  Karantsalis filed a notice of dismissal on Dec. 29, 2008.

“Society wins when individuals with disabilities receive equal access to government services,” said Karantsalis.  Karantsalis is an activist with the National Multiple Sclerosis Foundation.

See the following page for Mr. Karantsalis’ heartfelt tribute to Edward S. Resnick.

The following is a message recently received from Theo Karantsalis.  Mr. Karantsalis blogs at the Social Media Press, and he speaks passionately about the impact Access Now^®, and especially its founder, Edward Resnick, has made on his quest for equality in the communities where we live.  As I said in concluding our last newsletter, “It is our fervent hope to continue to take part in this effort, and with your help and encouragement we shall persevere in making ever-greater strides in that direction.”  Mr. Karantsalis’s comments indicate some progress is being made at the grass roots.

On Remembering Edward Resnick, founder of Access Now, Inc.^®

By Theo Karantsalis

WEDNESDAY, DECEMBER 24, 2008

I start every settlement discussion by thanking Mr. Edward Resnick, the man who laid the groundwork for the disabled community to enjoy equal access.

In 1954, during Christmas and Hannukah, Edward was struck with polio. As he continued his life as an attorney on Miami Beach, he was often asked to leave the theater. The reason: his wheelchair blocked the aisles. This was decades before federal civil-rights statutes were passed to protect the disabled.

Since Edward passed away in 2003, I have litigated several cases against the government under the ADA and the Rehab Act as a pro se, or by myself. But I’m not really going it all alone. Phyllis Resnick, Edward’s wife, asked me why I don’t pass these cases on to an attorney. The answer: Because I go into meetings and to court with Edward as my co-counsel.

Edward taught me that it sometimes takes a lawsuit to bring people to the negotiating table. When I get to this stage, as I did yesterday in a Title II case against the city, county and state, I read the following statement:

At every ADA settlement discussion, my policy is always to acknowledge and thank Mr. Edward Resnick. May he rest in peace.

When I’m finished, and to diffuse what might otherwise be a cantankerous, closed-door settlement discussion, I look everyone in the eye and say:

It’s a pleasure to negotiate with people who want to do the right thing.

“The most frustrating thing I find is the lack of knowledge and professionalism on the part of lawyers who represent the defendant. They don’t know anything about the ADA,” said Edward, in a message to lawyers in The Florida Bar News on Sept. 15, 2000. Edward said that defense attorneys unfamiliar with ADA should refer their cases to someone who does.

“If you’re sued, get your inspection report, sit down with the plaintiff and settle it,” said Edward.

Accordingly, when defense attorneys make threats, jockey for position or need to be educated, I tap my coat pocket. This is where I keep Access Now’s mission statement; my assurance that things will work out OK since I’m fighting for what’s right. Access Now’s mission is to sufficiently spread the word whereby public accommodations will make the necessary alterations on their own to comply with the law, instead of the prevalent attitude of waiting for someone to catch up with them.

Thank you, Edward, for teaching me how to become self-sufficient in managing my own accommodations.

Theo Karantsalis works as a librarian at Miami Dade College and has multiple sclerosis.  He is also an activist with the National Multiple Sclerosis Foundation.

US Dept. of Justice v. Wal-Mart Stores, Inc.

A Settlement Agreement:  The Service Animals Issue

On January 16, 2009, the U.S. Dept. of Justice Civil Rights Division (USDOJ) entered into a settlement agreement with Wal-Mart Stores, Inc. under Title III of the Americans with Disabilities Act (Title III) to improve access for persons with disabilities at Wal-Mart stores nationwide. The agreement resolves an investigation initiated after USDOJ received several complaints alleging Wal-Mart had refused to make reasonable modifications to its rules, policies, practices, and procedures for customers with disabilities in violation of Title III. Many of the complaints alleged that persons with disabilities were denied access to Wal-Mart stores or were denied an equal opportunity to shop, free of repeated challenges by Wal-Mart staff, because they were accompanied by service animals. Service animals are dogs and other animals that are individually trained to work or perform tasks for persons with disabilities.

The settlement agreement covers all facilities open to the public located in the United States, including all Wal-Mart stores, Supercenters, Sam’s Clubs, and Neighborhood Markets. The settlement agreement, which will be effective for three years, requires Wal-Mart to take several steps to improve access for customers with disabilities, including:

• Wal-Mart’s undertaking not to discriminate in violation of Title III and to provide reasonable modifications to individuals with disabilities as required by Title III, such as disability-related assistance such as helping customers in locating, lifting, and carrying items;
• Adoption and implementation of an ADA-compliant policy of welcoming persons with disabilities who use service animals into Wal-Mart stores with little or no questioning and without repeated challenges by Wal-Mart employees;
• Training all employees on Wal-Mart’s obligations under Title III to make reasonable modifications for individuals with disabilities and Wal-Mart’s new ADA-compliant service animal policy;
• Additional training for store management and People Greeters, since employees in these positions have additional responsibilities under Wal-Mart’s new service animal policy;
• Posting of Wal-Mart’s new service animal policy on its website and in employee areas at its stores; and
• Establishment of a grievance procedure by Wal-Mart to receive Title III complaints at a toll-free hotline, investigate such complaints and take appropriate corrective action to resolve any noncompliance with Title III.

Under the settlement agreement, Wal-Mart will also pay $150,000 into a fund to compensate certain individuals with disabilities who filed administrative complaints with the USDOJ alleging Wal-Mart’s refusal to make reasonable modifications, including the denial of equal access to persons with disabilities who use service animals. USDOJ will determine which complainants are to receive damages from the fund as well as the amount of damages.  Finally, Wal-Mart will pay an additional $100,000 into a fund for USDOJ to finance a public service announcements to increase public awareness of the access rights of persons with disabilities who use service animals. The nature and scope of the public service announcement campaign will be determined by USDOJ.  The settlement agreement is posted on USDOJ’s ADA Home Page at http://www.ada.gov.

For further insight into, and a fascinating discussion of, the service animals issue we are happy to direct you to an article beginning at page 34 in the January 4, 2009 issue of The New York Times entitled “Creature Comforts” by Rebecca Skloot.  You can find the article online at http://www.nytimes.com/2009/01/04/magazine/04Creatures-t.html.

We want to update you on a case from our September 2005 issue.  We had opined that there was “cause for concern” over a judge’s refusal to grant attorney’s fees to a successful A.D.A. plaintiff in Doran v. Del Taco, Inc. 373 F. Supp. 2d 1028(C.D. Cal. 2005).  U.S. District Judge Gary Taylor denied attorney’s fees under the A.D.A. because the plaintiff had not given a pre-litigation warning notice to the defendant prior to bringing suit so the defendant could cure any A.D.A. violation.  We characterized the judge’s action, which is NOT required under the A.D.A., as a “judicial end run around Congress’ consistent refusal to enact a pre-suit notification requirement.”

Well, it looks like the 9th Circuit U.S. Court of Appeals agrees with us.  On May 21, 2007, in an unpublished opinion, the appellate court reversed Judge Taylor’s refusal to grant attorney’s fees.  It found that “the district court should have either set a reasonable fee award using [a] flexible, fact-specific approach . . . or given specific, valid reasons for its denial of fees.  Instead, it denied fees by subjecting Doran to a requirement not found in the ADA or the case law.”  The case was returned to the District Court for a decision on attorney’s fees that complied with the legal requirements.

This is another instance where a judge’s refusal to follow the law has led to the needless expenditure of scarce funds.  We hope that Congress’ review of the A.D.A. makes clear that rogue judges are not free to impose additional burdens on plaintiffs in these cases.

Kenneth Kronstadt, a recent graduate from the University of Southern California School of Law, authored a November, 2007 note published in the University of Southern California Law Review.  Kenneth Kronstadt, Looking Behind the Curtain: Applying Title III of the Americans with Disabilities Act to the Businesses Behind Commercial Websites, 81 S. Cal. L. Rev. 111 (2007).  The note argues for the applicability of Title III of the ADA to any website engaged in commerce.

As you may know, Access Now, Inc.^® argued for this very proposition in our 2004 case against Southwest Airlines.  Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, (11^th Cir. 2004).  We lost that case, but Mr. Kronstadt’s persuasive arguments provide additional ammunition to disability advocates seeking the opportunity to revisit this issue.  You can read the full note online at http://law.usc.edu/students/orgs/lawreview/ K.KronstadtLookingBehindtheCurtain.cfm.