Phyllis F. Resnick, President

 

A Florida Not-For-Profit

501(c) (3) Corporation

19333 West Country Club Drive #1522

Aventura, Florida 33180

                                                                                         

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DECEMBER, 2006                                              DECEMBER, 2006


NEWS! NEWS! NEWS!
READ ABOUT OUR MOST RECENT

ADVOCACY ACCOMPLISHMENTS!!!

WITH YOUR CONTINUED SUPPORT
WE CONTINUE TO GROW NATIONALLY
(NATIONAL GROWTH = NATIONAL VICTORIES!!!)

 

 

DECEMBER, 2006

 

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“ACCESS NOW, INC.” ®

(a Florida not-for-profit, 501(c) 3 Corporation)

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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 New York City Council

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 City of San Francisco for the building department, the department of public Works, and most recently, as the deputy director of the mayor’s office on disability.  Thank you for patiently listening to testimony on every side of this important issue.  I have previously served as an elected official as well.  So I know what it is like to hear so many different viewpoints on something as complex as a building code. 

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 New York City because the issues you are considering today will have a real and lasting impact on the approximately 20% of our country’s population, people with disabilities.  Your decision will impact people who use wheelchairs; your decision will impact people who have visual or hearing disabilities; your decision will impact people who don’t have a disability yet.  But, as they age, will have some type of disabling condition. 

As I mentioned earlier, until retiring in May of this year, I was a building official for the City of San Francisco.  I still am a member of the California Building Officials Chapter of the ICC (International Code Council) and have fifteen years of experience with that organization.  You have heard that the ICC process is strictly controlled by building officials.  I came to your hearing today to inform you how difficult the ICC’s system makes it for people with disabilities to even be heard when codes are being developed.  It is harder still for them to be part of the final code adoption process.

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 California.  Through NFPA, we finally have an opportunity to be involved in every step of the development process for building codes that affect our lives and function. 

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 [danny@dannymurphy.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:

 

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 Florida accounts 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. 

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.

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.

________________________________________________________________

2.    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!

3.    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.

4.              Emory UniversityIn 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.

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 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).

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U.S. JUSTICE DEPARTMENT SUES FLORIDA COUNTY FOR

ENGAGING 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 .

________________________________________________________________________


GOVERNMENTAL NEWS:
 

Washington Building Code Council Could Reduce Required Housing Units for People with Disabilities

October 17, 2006

By Kevin Graman, The Spokesman-Review, Spokane, Wash.

Washington residents with disabilities might soon have a harder time finding accessible housing if a state panel reduces the required number of accessible units that builders must include in apartments and condominiums. 

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 Spokane's Coalition of Responsible Disabled, has called for keeping the code at 5 percent.  "The state has always been in the forefront," said Marc Brenman, executive director of the state Human Rights Commission.  "This is a step backward."

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 Spokesman-Review, Spokane, Wash.

______________________________________________________________________


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 ADA and has created a new set of barriers for disabled Americans. This bipartisan legislation will enable disabled Americans utilizing the ADA to focus on the discrimination that they have experienced rather than having to first prove that they fall within the scope of the ADA's protection. With this bill, the ADA's 'clear and comprehensive national mandate for the elimination of discrimination on the basis of disability' will be properly restored and the ADA can rightfully reclaim its place among our Nation's civil rights laws."

Congressman Hoyer said: "As the lead Democratic sponsor of the ADA in the House, I harbored no illusions that this legislation would topple centuries of prejudice overnight - nor that we could legislate that prejudice out of existence. Over the last 16 years, this landmark law has ushered in significant change. However, the promise of the ADA remains unfulfilled. The Supreme Court's interpretations of this historic law have been largely inconsistent with the original intent of Congress and President George H.W. Bush in enacting the ADA. For example, people with diabetes, heart conditions and cancer have had their ADA claims kicked out of court because, with improvements in medication, they are considered 'too functional' to be considered 'disabled.' This is not what Congress intended when it passed the ADA. We intended the law to be broadly - not narrowly - interpreted. The point of the law is not disability; the point is discrimination. I am pleased to join Chairman Sensenbrenner in introducing this legislation, which will help restore the original intent of the ADA."

"Americans with Disabilities Act Restoration Act" Background:

Replacing "against an individual with a disability" with "on the basis of a disability" harmonizes the ADA with the Civil Rights Act of 1964 and other civil rights laws that prohibit discrimination "on the basis of race, color, religion, national origin, and sex."

Prohibiting discrimination "on the basis of a disability" will enable individuals utilizing the ADA to focus on the discrimination that they have experienced rather than having to prove that they fall within the intended scope of the ADA. This phrase presumes that an individual is a member of the protected class if they are disabled, which the current language - "against an individual with a disability" - does not.

http://www.usnewswire.com/

Copyright © 2006 PR Newswire Association LLC.

________________________________________________________________________

This information comes from the U.S. Dept. of Justice Civil Rights Division, Disability Rights Section -- http://www.usdoj.gov/crt/ada/qasrvc.htm

COMMONLY ASKED QUESTIONS ABOUT SERVICE ANIMALS IN BUSINESSES

1. Q: What is a service animal?

A: The ADA defines a service animal as any guide dog, signal dog, or other animal individually trained to provide assistance to an individual with a disability. If they meet this definition, animals are considered service animals under the ADA regardless of whether they have been licensed or certified by a state or local government.

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?

A: 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 ADA requires these businesses to allow people with disabilities to bring their service animals onto business premises in whatever areas customers are generally allowed.

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?

A: Yes. A service animal is not a pet. The ADA requires you to modify your "no pets" policy to allow the use of a service animal by a person with a disability. This does not mean you must abandon your "no pets" policy altogether but simply that you must make an exception to your general rule for service animals.

6. 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 ADA?

A: 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 ADA provides greater protection for individuals with disabilities and so it takes priority over the local or state laws or regulations.

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.

8. 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 ADA if I refuse to pick up someone with a service animal?

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.

If you have further questions about service animals or other requirements of the ADA, you may call the U.S. Department of Justice's toll-free ADA Information Line at 800-514-0301 (voice) or 800-514-0383 (TDD).

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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.

OUGHTA BE A LAW: Mitch and Donna Pomerantz, with guide dog “Scotch”, are calling for new taxi regulations

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.

But perhaps worst of all, the couple found, is that in Pasadena there was little they could do about it short of the cumbersome process of taking the cab company to court — which they have done, a procedure that so far has taken more than a year.  If the incident had occurred in Los Angeles, where Mitch works as an Americans with Disabilities Act (ADA) compliance officer, a complaint could have been filed with the city’s Taxi Commission and investigators might have resolved the matter in a few weeks.  But in Pasadena, where Donna serves as vice chair of the Accessibility and Disability Commission, there is no one to hear such complaints.  It’s a reality, not just for the disabled but also for seniors and others who feel they are being mistreated, that the two have been trying to change since the Jan. 31, 2005, incident.

“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.

But getting Pasadena, a nationally recognized leader on disabilities issues, to change its ways has also been tedious process — one that’s taken longer than anyone involved had imagined.  While the city Accessibility and Disabilities Commission first recommended new taxi regulations in July 2005 based on that incident, Commission Chair Terrie Allen says she has yet to hear about much progress being made at City Hall.  “We cannot afford to have a toothless ordinance when it comes to out cab companies,” said Allen. “While we have to bear in mind things realistically do delay it, it is incumbent on this city to assure that the drivers who are licensed and doing business in our city are trained in ADA.”

Pasadena 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, Pasadena was recognized on a national level as the most accessible city. I hope that we can continue leadership in that regard and require the full cooperation of cab companies with the needs of persons who work with a guide dog,” said Bogaard.  “There shouldn’t be a moment’s hesitation in making our regulations conform with federal or state requirements.”

Several 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.  Pasadena’s lack of an enforcement mechanism all too common among mid-sized cities, said Los Angeles Taxi Administrator Tom Drischler.  Perhaps that’s because some fear the bureaucracy and cost potentially involved.

“I 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 Pasadena should take action, said Gordo, “The only question is what is the most effective and efficient way to make sure those rights are enforced.”

For 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 Pasadena they are protected from abuse, that alone will cost the city far more than it would to set a good taxi ordinance in place to protect patrons,” she said.

Said Mitch Pomerantz, “I just want to make sure this doesn’t happen to anybody else.”

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CONCLUDING THOUGHTS:

 

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. 

 

“Access Now” operates entirely on voluntary donations.  If it is at all possible for you to demonstrate your enthusiasm for our work by making a financial contribution, it would be deeply appreciated!

 

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.

 

BEST WISHES FOR A HAPPY, HEALTHY AND ACCESSIBLE HOLIDAY SEASON AND NEW YEAR!!!

 

Access Now, Inc.

 

 

 

Phyllis F. Resnick

President

 

(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.)