Introduction

Newsletter – April 2006 (page 2)

Newsletter – April 2006 (page 2)

AND NOW, THE UPDATE

 

Membership

We now have 1,000 members representing 48 states plus Canada, Hong Kong, Australia and Puerto Rico.  Our Board of Directors stands at 40, our Executive Committee at 8, our Attorneys represent 4 law firms and our Consultants number 4.  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 give special commendation to our new Treasurer (another charter member of our Executive Committee) Estelle Michelson, who stepped in immediately and seamlessly when Miki could no longer continue with the responsibilities of being Treasurer.  Estelle assumed the duties of this very important office on short notice and has been doing an excellent job!  We cannot go without mentioning here the enormous contributions of our computer consultant, Gregory Arkin, 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 September Newsletter (which you received in November), “Access Now” has made progress in settling cases in several states.  As we continue to settle more cases, “Access Now” and its attorneys have instituted a management system to guarantee that the agreed-upon work is finished in a timely fashion.  Of the 57 cases in which modifications and alterations were supposed to have been completed over the past seven months to make properties A.D.A.-compliant, we are proud to report that the majority were completed on or ahead of schedule.

“Access Now” has filed a total of 937 cases since its inception.  Presently, there are 140 cases with Settlement Agreements still outstanding, requiring alterations or modifications which in several cases should have been completed by August 1, 2005, or later.  (Obviously, in cases involving hospitals and other large and complex facilities, those post-settlement compliance completions have dates much further out.)

During the past seven months, “Access Now” has entered into 10 additional settlements to make properties A.D.A.-compliant.  They include:

Banks                                        1

Hotels/Motels                        2

Malls                                         2

Grocery Stores                       1

Restaurants                            2

Stores                                       1

Theme Parks                           1

 

“Access Now” continues to become more national in scope.  The 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 20% of settlements over the past seven months. 

Florida                                       2

Maryland/DC                           2

National                                    1

Oklahoma                                 2

Pennsylvania                           1

Tennessee                                1

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 JUST SINCE our last newsletter:

Banks

Unnamed because of confidentiality clause in settlement agreement, FL 

Grocery Stores

Kroger’s, Knoxville, TN

Hotels

Inn at Reading, Wyomissing, PA

Holiday Inn, Port St. Lucie, FL

Malls

Second Wicklow, LLC, Stillwater, OK

Virginia Center Commons, Glen Allen, VA

Restaurants

Mi Rancho, Germantown MD

Red, Hot & Blue, Waldorf, MD

Stores

Brookstone Stores, national (see class actions)

Theme Park

Frontier City, Oklahoma City, OK

 

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.

If any of you has had bad experiences regarding handicapped accessibility with hospitals or other medical facilities in your communities, we want to know so that we can incorporate those concerns into our current efforts.  In addition, if you are aware of any hospitals that are doing a great job with accessibility, we want to know that as well, so that we can alert and educate our members.

Likewise, if any of you has had bad experiences regarding handicapped accessibility in your communities, we would like to hear from you so that we can incorporate your concerns into our efforts.  We are interested in working hard to create accessibility in all communities.

We are committed to creating the legacy of an accessible world.  Please help us to help ALL of us!  Thank you!

Hospital

The numbers of individual hospital cases that have been settled or are moving rapidly toward settlement continues to increase every week.  There are presently Fairness Hearings scheduled in the 19 class actions listed immediately below.

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

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.

 

The following is a column written by a blogger in Virginia about three such examples of our successes:

Pulaski hospital inclined to settle ADA lawsuit

By Jeff Sturgeon for “Chat Scan” at www.Roanoke.com, the online service of The Roanoke Times.

The Americans with Disabilities Act, which forbids discrimination on the basis of disability, has prompted some hospitals to retrofit bathrooms, rework parking lots and make other changes that blind, deaf, retarded, wheelchair-bound, amputated or otherwise disadvantaged patients need.

The hospitals have made changes not technically required until major facility improvements were untaken (sic) for an unrelated reason. But it would be imprecise to conclude the hospitals acted on goodwill alone. Many hospitals have signed legal settlements with a small Florida not-for-profit organization, Access Now Inc, which has made hospital compliance with the ADA the objective of an ongoing federal lawsuit since 1999.

Lewis-Gale Medical Center in Salem confirmed in 2003 it planned to settle with Access Now and announced a wide-ranging series of physical-plant improvements. Currently, at least two other hospitals in Western Virginia, Pulaski Community Hospital and Alleghany Regional Hospital, appear close to settling.

Mark Rader, the chief executive officer at Pulaski, said the hospital’s original structure, built in 1972, hasn’t been upgraded over the years. But that doesn’t mean the hospital neglects the needs of the disabled. It has closed-caption television, some telephones for use by those with limited hearing, handicapped parking, wheelchair ramps and wheelchair-accessible bathrooms in some locations, for example. However, the hospital recognizes that more accommodations are possible and is willing to cooperate with the Access Now court process to attain full ADA compliance, Rader said.

Like the other hospitals that have settled, Pulaski Community won’t owe any money to Access Now, but, assuming the settlement is signed and approved, will further retrofit its facilities without admitting guilt or liability. This legal noticeexplains the proceedings in U.S. District Court for the Southern District of Florida.

“It’s not your typical lawsuit,” Rader said, adding that HCA Inc. agreed to have ADA issues settled in the context of the Access Now suit for all its facilities. HCA owns Pulaski, Alleghany, Lewis-Gale Medical Center and Montgomery Regional Hospital, among other hospitals.

To cite a few examples of the planned improvements at the Pulaski hospital: Conventional door knobs on the doors to dressing rooms 1 and 2 in the ultrasound department will be replaced with lever-style hardware. The coat hook in the chapel will be lowered to 48 inches above the floor from the current height of 67 inches. A wheelchair ramp in the parking lot of Children’s Choice Pediatric in Dublin, which the hospital owns, will be reworked to make it less steep.

The work could take a couple of years. No cost estimate was available.


City of Miami, Florida

We have had quite a tussle with the City of Miami.  They have not met the deadlines to which they previously agreed.  We are trying to get them to do the “right thing”, but it has proven increasingly difficult.  We may have to return to court if the city does not live up to its commitments in the very near future.  We will keep you informed.

However, the Florida Department of Transportation (FDOT), another defendant in the case, has done a much better job of meeting its commitments.  In the year ending October 31, 2005, FDOT completed work implementing ADA improvements on seven state highway projects within the city of Miami.  In these projects FDOT created or replaced 220 ramps, 119 driveways (totaling 28,785 sq. ft.) and 85,930 sq. ft of sidewalks.  The total cost of the seven projects was $1,240,910.

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.  However, it has had difficulties with its architects.  It had to fire one and secure the services of another who could better handle the job.  This has caused it to miss the intermediate evaluations and milestones that were set up in the settlement agreement.  While this means that Sonora will not be A.D.A. compliant by March 31, 2006, as the settlement envisioned, the city continues to make progress.  We continue to believe that when completed, Sonora will have a municipal plan second to none that will guarantee participation by its disabled community in all of the city’s activities and affairs.

Holland America and Costa Cruise Lines

A fairness hearing was held and the class action certification was granted in these cases by Judge Shelby Highsmith.  Judge Highsmith also had words of praise for all involved, saying that everyone had done a beautiful job!  It means so much to us to be able to report this to you, as well!!!  These two cruise lines have been added to the Cunard and Carnival settlements, bringing to 22 the total number of cruise ships having been made or in the process of being made accessible.

Emory University

This case against architects and engineers for university projects continues on after a related case was settled in 2002.  On March 3, 2006, Judge Clarence Cooper made several rulings, including denial of a motion for summary judgment.  The judge said that the parties are to meet by March 23rd to discuss settlement of the outstanding issues.  If they cannot reach settlement, the judge will send the case to alternative dispute resolution or set it for trial.  Although we will negotiate in good faith, we are preparing for trial.

Malls and Shopping Centers

Of the 20 cases mentioned in our last newsletter that have been settled against malls and shopping centers with Time Up Dates (when work is to be completed) through the end of 2005, work has been fully completed in 7 more cases.  This is one more indication that these comprehensive settlements are improving the quality of life for the disabled.

Norwegian Cruise Line, Ltd.

The Court held a pre-trial hearing on December 27, 2005.   The case has been scheduled for hearing on the cruise line’s Motion for Summary Judgment.  Settlement negotiations are continuing

with NCL, and we hope they will bear fruit.  However, we are prepared for the motion hearing, and we will go to trial if negotiations are unsuccessful.  In preparation for trial, Access Now’s experts inspected the Norwegian Wind on February 18th at the Portof Honolulu and found it seriously wanting.  We shall continue to pursue this situation.


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:

Brookstone Stores

After the Fairness Hearing on January 4, 2006, Judge Joan Lenard issued an order denying the objection of 17 state Protection and Advocacy organizations and approving the settlement.  This milestone settlement encompassing over 350 stores is already being implemented by Brookstone with notices being posted in their stores advising customers that stores are being renovated to make them ADA-compliant.  We feel that this settlement will make a major contribution to the quality of life of the disabled who want to use the unique products available at Brookstone.  This is a case which was begun over three years ago, and it is most gratifying to have achieved this very substantial outcome that will positively affect the quality of life of thousands of disabled shoppers nationwide.

PLEASE TAKE SPECIAL NOTE OF THE FOLLOWING PARAGRAPH:

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 the restaurants. That will allow the disabled better access to this restaurant chain.  U.S. District Judge Jose E. Martinez held a Fairness Hearing in the case on April 7, 2005.  In early 2006, he ordered additional notice to the class regarding amendments to the class certification.  That new Fairness Hearing has been scheduled for June 14, 2006 at 1:30 p.m.  We would hope to have a big showing of our members at the U.S. District Court in Miami, Florida, 301 North Miami Avenue, 3rd Floor.  Following that hearing, we are hopeful that the judge will approve the settlement.

NON-“ACCESS NOW” LITIGATION

We want to keep you informed about important recent litigation around the country, of which you might not be aware, 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 January the United States Court of Appeals decided that the ADA applies to an employee with end-stage renal disease who requires dialysis three times per week to eliminate the waste that had built up in his system.  James Heiko was passed over for promotion by his employer, the Colombo Savings Bank, in favor of a less qualified person.  Statements by the bank’s president and vice president made clear that Heiko’s renal disease was a significant reason for his not being promoted.  At trial the bank contended that waste elimination was not a “major life activity” and that Heiko was therefore not disabled.  The 4thCircuit held to the contrary, finding that waste elimination was a major life activity.  It went on to find that Heiko’s thrice-weekly dialysis constituted a “substantial limitation” on this major life activity.  The district court’s judgment was reversed, and the case was returned for trial.  This case is especially significant because the 4th Circuit is perhaps the most conservative court of appeals in the country.  At a time when many district courts seem to oppose enforcement of the ADA, this gives hope that they may be reigned in by even the most conservative appellate courts.  You can read the full opinion in the case at the 4th Circuit’s website, http://207.41.17.117/ISYSquery/IRLF151.tmp/1/doc Heiko v. Colombo Savings Bank, F.S.B, 434 F.3d 249, 17 A.D. Cases 780 (4th Cir. 2006).
  • The National Federation of the Blind (NFB) has filed a class action suit in California against Target Corporation, a nationwide discount retailer operating more than 1,300 stores in 47 states.  The suit charges that Target’s website (www.target.com) is inaccessible to the blind, violating the California Unruh Civil Rights Act and the California Disabled Persons Act.  According to the complaint, Target’s website “contains thousands of access barriers that make it difficult, if not impossible, for blind customers to use the website.”  Given the outcome in our own Access Now case under the federal ADA against Southwest Airlines for having a very similar website, it will be interesting to see how this state law case proceeds.  The plaintiffs’ attorneys are Disability Rights Advocates, and they have more information regarding the case (including a link to the complaint and a fact sheet) at their website, http://www.dralegal.org/cases/private_business/index.php National Feder-ation of the Blind et al v. Target Corporation, Alameda County (CA) Superior Court No. RC06254127.

"Newsletter – April 2006" table of contents

  1. Newsletter – April 2006
  2. AND NOW, THE UPDATE
  3. INFORMATION RESOURCES ON AND OFF THE WEB:
  4. GOVERNMENTAL NEWS
  5. MISCELLANEOUS ITEMS OF INTEREST
  6. CONCLUDING THOUGHTS: