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NEWSLETTER UPDATE – DECEMBER, 2006
FROM PHYLLIS F. RESNICK, PRESIDENT
HELLO, AGAIN, EVERYBODY!!!!!
Well, another 6 months have passed since our last newsletter and much has happened in the world of “Access Now”. We have had several Class Action Fairness Hearings, a trial and many Settlements. It has been an active, interesting, challenging, sometimes aggravating, but mostly gratifying time! Some things are happening in the overall A.D.A. (Americans with Disabilities Act) world as well; more about all of the above later in this newsletter.
We have pointed out to those of you who have been receiving this newsletter for some time that, sadly, many entities continue to fail to comply with the A.D.A., despite the fact that the law was enacted in 1990. As we have said before, we continue to press on with cases against a variety of entities. On a continuing basis, virtually daily, we receive complaints from disabled persons who are routinely being denied their rights under this civil rights law. There is no such thing as a “large” or “small” case, only a large or small entity and we take pride in the fact that we do not limit our efforts to either category. The resolution of high profile cases of legal “first impression”, as well as of those involving neighborhood businesses have a great impact on the daily lives of the disabled among us (although we want to make clear that it is not our aim to put anyone out of business.)
AS AN INTRODUCTION TO OUR WORK, FOR THOSE OF YOU WHO ARE NEW TO US, WE WOULD LIKE TO BEGIN WITH THE FOLLOWING TESTIMONY AND A MESSAGE FROM A MEMBER. THEY SHOW THAT WE ARE MAKING A DIFFERENCE:
Testimony from Richard Skaff before the Housing and
Buildings Committee of the
Retired Deputy Director, Mayor’s Office on Disability, and Building Official, City and County of San Francisco, California Coalition of Disability Access Professionals
Hello. My name is Richard Skaff. I have served as a building official with the
Quite frankly, I didn’t think about building codes much until I was injured 27 years ago. Then, at that point in my life, it became very clear to me just how important building and other safety codes are to people with disabilities. It doesn’t matter where you live, if you have a disability, building codes really do make a big difference in an individual’s ability to function in their community. That is why I wanted to speak with you today. As you can imagine, it is not an easy process for me to travel all the way across the country. I made this trip specifically to be able to speak at this hearing.
I made the
decision to come to
mentioned earlier, until retiring in May of this year, I was a building
official for the City of
I have seen code development under the ICC, and it was not inclusive. Each time advocates for the disability community would attempt to raise code related issues, we were shut out. Our proposals were stopped time after time after time. Quite simply, I don’t think that most of the ICC decision makers understood the issues facing those of us with disabilities. Quite frankly, I don’t think they knew what to do when we spoke up.
In contrast, NFPA (National Fire Protection Association) has a long history of involving everyone in their code development process. Even with NFPA’s open process, NFPA has recognized that they needed to do more to get sufficient input from the disability community. In the NFPA system, that can happen. And, in the last few months, NFPA has developed and implemented a new national disability access advisory committee. In the NFPA process, we have a real voice. For many years, NFPA has been balancing the needs of many different groups to develop safety codes that are used world wide.
I know that you are going to hear from people about an ICC standard that is widely used in the area of disability. What you will be told about its national acceptance by the building and design community is true, but many in the disability community know that the ICC standard does not do enough. For years, ICC has essentially been saying to the disabled community that that one standard should address all of our needs. We don’t really get a full degree of input on their other documents. Well, it doesn’t meet all of our needs. In fact, building codes, fire codes and other safety codes impact our lives and we need to have the greatest degree of input in those codes as well. But, for some reason, the ICC does not have a process that allows us the level of input to develop what is needed for our community.
I am not here
to tell you which code to adopt. I don’t
think that would be appropriate.
However, I came today to provide you with input about our positive
experience with NFPA in
I will tell you that if you vote for intro 368, you will be working with a better code development process that will better meet the needs of people with disabilities. We feel that our experience with NFPA has been beneficial to the disability community. I know there will be times when I disagree with the outcome of an NFPA decision, but I think NFPA is structured to allow people with disabilities to have more input when it comes to the development of safety codes. Thanks again for your time.
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From: Dan Murphy [email@example.com]
Sent: Friday, May 19, 2006 4:48 PM
To: Dan Murphy
Subject: V.A.S.S.: a free service offered to writers to encourage development of characters with disabilities
Friends in and out of the biz:
I am writing to let you know I am working full time developing a not for profit consulting service called Value Added Script Services or V.A.S.S. for your information and potential use as writers, producers, actors, etc. V.A.S.S. is a free service provided by volunteer performers with disabilities (PWD) to WGA writers to help them create characters with disabilities in their scripts.
V.A.S.S. is also available to help producers and casting directors in any way necessary. The V.A.S.S. team is united in doing this because we all know from experience what a recent SAG/U.C.L.A. study revealed: that performers with disabilities only appear in film and TV .5% of the time. That's pretty bad considering U.S. Census data states that people with disabilities make up 20% of the population.
Attached is an executive summary and link to our website. Over the last few months, I have made great strides working with the guilds and getting the support of industry leaders like Pete Farrelly, Marlee Matlin, Jason Alexander, Angel Rivera, Chemin Bernard, Ricky Blitt, and many others. Hopefully, within a week or so, I will have a major PR firm on board who will use all of this juice to help us convince writers and producers to utilize our really strong and creative group of artists.
AND NOW, THE UPDATE:
We now have 995 members representing 47 states and
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
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:
Sport Venues 2
Theme Parks 1
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
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:
McDonald’s (3), Midfield,
Arby’s, National Class Action
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.
1. 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.
St. Christopher's Hospital,
Hearing was held on September 19th involving the 10 Hospital
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.
Emory University – In
this case, “Access Now” and member Kami Barker of
5. 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
Arby’s: “Access Now” brought suit against Arby’s
based on the A.D.A. non-compliance of approximately 773 of its restaurants in
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
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.
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
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!
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
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
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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
"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 .
October 17, 2006
By Kevin Graman, The Spokesman-Review,
On one side of the issue are contractors and architects who favor reducing the number of "Type A" accessible units from the state standard of 5 percent to the national standard of 2 percent. The code applies to multifamily buildings with 10 units or more of housing. "Our concern is that over the years we have probably overbuilt these units, which are very expensive to construct," said Brian Minnich, legislative affairs director of the Building Industry Association of Washington. He said a 1995 survey showed few of such units were actually occupied by someone who required that level of accessibility. Reducing the requirement to 2 percent would be consistent with the International Building Code, the Fair Housing Act and the Americans with Disability Act. However, under the Rehabilitation Act, housing projects that receive federal funds are required to provide wheelchair access in 5 percent of units.
On the other side are disabled
rights advocates who argue that there are not enough accommodations for people
with disabilities. "People who need
accessible housing are encountering significant difficulty in finding it when
they need it," said Toby Olson, executive secretary of the governor's
Committee on Disability Issues.
"The aging of our population is only going to make the demand
worse." According to Olson, he cost
of building a Type A unit is 0.5 percent to 2 percent higher than that of a
normal unit. The Washington Independent
Living Center Coalition, which includes
Caught in the middle is the state Building Code Council, which has led the nation in disability rights issues. The council will decide on the proposal at its Nov. 17 meeting. Public testimony on the issue ended Oct. 13, said Timothy Nogler, the council's managing director. The council is reviewing the state codes as it does every three years. Nogler said most of the testimony the council has received was that there are not enough units as demand increases. "Five percent of the public has mobility issues now, and that is expected to increase to 7 percent by 2010 as the population ages." Any revisions in the state building codes would take effect on July 1, 2007, after the Legislature has a chance to review them.
Copyright (c) 2006, The
Sensenbrenner/Hoyer Introduce Bipartisan Legislation Restoring Americans with Disabilities Act Protections
WASHINGTON, Sept. 29 /U.S. Newswire/ -- House Judiciary Committee Chairman F. James Sensenbrenner, Jr. (R-Wis.) and House Minority Whip Steny H. Hoyer (D-Md.) today introduced bipartisan legislation that would restore protections for disabled Americans under the Americans with Disabilities Act of 1990 (ADA). H.R. 6258, is titled the "Americans with Disabilities Act Restoration Act of 2006."
Chairman Sensenbrenner stated, "The
landmark American with Disabilities Act has helped ensure American citizens no
longer live in isolation but live as independent, self sufficient members of
our communities. In recent years, however, the Supreme Court has slowly chipped
away at the broad protections of the
Congressman Hoyer said: "As the lead
Democratic sponsor of the
"Americans with Disabilities Act Restoration Act" Background:
"against an individual with a disability" with "on the basis of
a disability" harmonizes the
discrimination "on the basis of a disability" will enable individuals
Copyright © 2006 PR Newswire Association LLC.
1. Q: What is a service animal?
Service animals perform some of the functions and tasks that the individual with a disability cannot perform for him or herself. "Seeing eye dogs" are one type of service animal, used by some individuals who are blind. This is the type of service animal with which most people are familiar. But there are service animals that assist persons with other kinds of disabilities in their day-to-day activities. Some examples include:
· Alerting persons with hearing impairments to sounds.
· Pulling wheelchairs or carrying and picking up things for persons with mobility impairments.
· Assisting persons with mobility impairments with balance. (This includes people who experience seizures. Ed.)
A service animal is not a pet.
2. Q: What are the laws that apply to my business?
Under the Americans with Disabilities Act (ADA), privately owned businesses
that serve the public, such as restaurants, hotels, retail stores, taxicabs,
theaters, concert halls, and sports facilities, are prohibited from
discriminating against individuals with disabilities. The
3. Q: How can I tell if an animal is really a service animal and not just a pet?
A: Some, but not all, service animals wear special collars and harnesses. Some, but not all, are licensed or certified and have identification papers. If you are not certain that an animal is a service animal, you may ask the person who has the animal if it is a service animal required because of a disability. However, an individual who is going to a restaurant or theater is not likely to be carrying documentation of his or her medical condition or disability. Therefore, such documentation generally may not be required as a condition for providing service to an individual accompanied by a service animal. Although a number of states have programs to certify service animals, you may not insist on proof of state certification before permitting the service animal to accompany the person with a disability.
4. Q: What must I do when an individual with a service animal comes to my business?
A: The service animal must be permitted to accompany the individual with a disability to all areas of the facility where customers are normally allowed to go. An individual with a service animal may not be segregated from other customers.
5. Q: I have always had a clearly posted "no pets" policy at my establishment. Do I still have to allow service animals in?
Yes. A service animal is not a pet. The
Q: My county health department has told me that only a seeing eye or
guide dog has to be admitted. If I follow those regulations, am I violating the
Yes, if you refuse to admit any other type of service animal on the basis of
local health department regulations or other state or local laws. The
7. Q: Can I charge a maintenance or cleaning fee for customers who bring service animals into my business?
A: No. Neither a deposit nor a surcharge may be imposed on an individual with a disability as a condition to allowing a service animal to accompany the individual with a disability, even if deposits are routinely required for pets. However, a public accommodation may charge its customers with disabilities if a service animal causes damage so long as it is the regular practice of the entity to charge non-disabled customers for the same types of damages. For example, a hotel can charge a guest with a disability for the cost of repairing or cleaning furniture damaged by a service animal if it is the hotel's policy to charge when non-disabled guests cause such damage.
Q: I operate a private taxicab and I don't want animals in my taxi; they smell,
shed hair and sometimes have "accidents." Am I violating the
A: Yes. Taxicab companies may not refuse to provide services to individuals with disabilities. Private taxicab companies are also prohibited from charging higher fares or fees for transporting individuals with disabilities and their service animals than they charge to other persons for the same or equivalent service.
9. Q: Am I responsible for the animal while the person with a disability is in my business?
A: No. The care or supervision of a service animal is solely the responsibility of his or her owner. You are not required to provide care or food or a special location for the animal.
10. Q: What if a service animal barks or growls at other people, or otherwise acts out of control?
A: You may exclude any animal, including a service animal, from your facility when that animal's behavior poses a direct threat to the health or safety of others. For example, any service animal that displays vicious behavior towards other guests or customers may be excluded. You may not make assumptions, however, about how a particular animal is likely to behave based on your past experience with other animals. Each situation must be considered individually.
Although a public accommodation may exclude any service animal that is out of control, it should give the individual with a disability who uses the service animal the option of continuing to enjoy its goods and services without having the service animal on the premises.
11. Q: Can I exclude an animal that doesn't really seem dangerous but is disruptive to my business?
A: There may be a few circumstances when a public accommodation is not required to accommodate a service animal--that is, when doing so would result in a fundamental alteration to the nature of the business. Generally, this is not likely to occur in restaurants, hotels, retail stores, theaters, concert halls, and sports facilities. But when it does, for example, when a dog barks during a movie, the animal can be excluded.
you have further questions about service animals or other requirements of the
This is an interesting story about the challenges we face even when there is universal agreement that the present system needs to change to better protect our rights.
By Joe Piasecki
For Mitch and Donna Pomerantz, it was a painful irony: On the evening that Donna was to receive a proclamation from the Pasadena, California City Council marking the 15th anniversary of the Americans with Disabilities Act, the sight-impaired couple claims to have been discriminated against when a taxi driver refused to allow them in the car with Mitch’s guide dog, a golden retriever named Scotch.
perhaps worst of all, the couple found, is that in
“What I’m asking Pasadena to do is to pass an ordinance that will actually regulate and set down in city statute that cab drivers and cab companies cannot discriminate against people and to stipulate the penalties for violations,” said Mitch Pomerantz, who also serves as vice president of the American Council for the Blind and the California Council for the Blind. “All I want is for there to be a responsible party once this ordinance is in place to follow up on these complaints,” said the 56-year-old, who lost his sight at age 11.
On Dec. 15, attorneys with the Los Angeles-based Disability Rights Legal Center filed a complaint in LA Superior Court against City Cab Co., which along with People’s Taxi has a franchise in Pasadena, alleging their driver’s refusal to accept the couple and their service animal was an act of negligence and a violation of the Unruh Civil Rights Act and
another state law. Pomerantz would receive at least $5,000 in punitive damages if City Cab, which in January ultimately sent another driver to take the couple to the council meeting, is found to have broken the law. He initially filed complaints with the federal Department of Justice and state Department of Fair Employment and Housing, but those agencies can take as long as 5 years to handle complaints.
Mayor Bill Bogaard said he isn’t aware what city staff will ultimately
recommend, but is favorable to the idea of the city playing a greater
enforcement role in cases of taxi discrimination, and soon. “In 2004,
years ago, Pomerantz filed a successful complaint with the Los Angeles Taxi
Commission on a driver who refused to take him and Scotch to fundraiser for the
California Council of the Blind.
support 100 percent Mr. Pomerantz’s efforts to enforce his rights, and any way
the city could be supportive, of course I’d support that,” said Councilman
Victor Gordo. But, he said, “I don’t
know that the answer is to grow the bureaucracy at City Hall. … We don’t do
everything like LA, and that often serves us well.” While
Allen, who has also served on the Human Relations Commission, it might be
enough to assign enforcement to an existing city department, and a volunteer
Taxi Commission could be established with little cost and bolster Pasadena’s
reputation as a tourism destination, she said.
“If visitors don’t feel that coming to
Said Mitch Pomerantz, “I just want to make sure this doesn’t happen to anybody else.”
We hope that the foregoing has helped you to achieve a fuller understanding of our work. Although much has been done, much more needs to be done. The population of the U.S. has just recently grown to 300,000,000 people and, given the ever-growing percentage of those with disabilities, the need for greater and further-reaching compliance with the A.D.A. continues to make itself all the more obvious and necessary. It is our fervent hope to continue to take part in this effort. With your help and encouragement we shall persevere in making ever-greater strides in that direction.
Thank you all and please:
IF YOU HAVE A CHANGE OF POSTAL ADDRESS, PHONE NUMBER OR EMAIL ADDRESS, PLEASE, PLEASE LET US KNOW SO THAT WE CAN KEEP OUR FILES UPDATED AND SO THAT WE CAN CONTINUE TO COMMUNICATE WITH YOU.
WISHES FOR A HAPPY, HEALTHY AND ACCESSIBLE
Access Now, Inc.
Phyllis F. Resnick
(Please note the membership form at the beginning of this newsletter. If you haven’t yet joined us, please do. If you have, please share the form with someone else. Remember, our membership is free of charge and is open to the able-bodied as well as to the disabled.)