AND NOW, TO OUR UPDATE
We now have 1023 members representing 48 states plus Canada, Hong Kong, Australia and Puerto Rico. Our Board of Directors stands at 40, our Executive Committee stands at 8, our Attorneys number 13, representing 7 law firms, our Consultants number 5. 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 acknowledge the efforts of our First Vice-President, Marla Dumas and the herculean contributions of our Treasurer, Miki Speijers! We also wish to express our gratitude to attorney Frank Herrera, who has served as a legal consultant quite expertly and expeditiously on a totally pro bono basis. We are fortunate to have had access to Mr. Herrera’s services. We cannot go without mentioning here the enormous contributions of our computer consultant, Gregory Arkin, without whom we would not be able to function! Greg, who is also a member of our Board of Directors, extends himself beyond the services for which he is compensated and we are very, very grateful to him. I personally want to thank a most outstanding gentleman, Thomas Miller, who is a veteran manager and business consultant and who has been serving as my part time assistant, without whom putting out this newsletter would not have been possible.
A BRIEF OVERVIEW OF OUR LITIGATION
Since our last Newsletter, dated July 2002, “Access Now” has made substantial progress in settling cases. As we settle more cases, a principal function of “Access Now” has become the management of these cases to insure that the work defendants promise to carry out is completed on time, a task with which we are making considerable progress.
“Access Now” has filed a total of 907 cases since its inception. Presently, there are 344 cases with Settlement Agreements with alterations or modifications that will be completed since our last newsletter. They include:
22 Cruise Ships
2 Educational Facilities
12 Miscellaneous Entities
1 Office Buildings
5 Sports Venues
3 Theme Parks
“Access Now” has also broadened the states in which cases have been filed. Those with the most active cases include:
8 New Jersey
This indicates the growing national character of the organization, since nearly one-half of these current cases are outside of Florida. We continue to receive requests for information and assistance from individuals and organizations throughout the country. To the degree that we are able to do so, we want to expand our geographical presence as we go forward. Please notify “Access Now” if you become aware of situations in other states where access continues to be denied.
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 often 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. The highlights of our accomplishments since the last newsletter are:
People are always amazed when we mention that we have serious problems with disability-compliance under the A.D.A. (The Americans With Disabilities Act) as related to hospitals. We, too, were amazed as well at first, but over these past seven years we have learned, sadly, that hospitals are among the most egregious violators! Accordingly, “Access Now” and its attorneys have for a long time been engaged in a broad-based, continuous series of actions against several large, nationwide hospital chains. We have been making progress toward settlements with those as well as with a number of smaller, independently owned hospitals and other medical facilities. Due to the ENORMOUS amount of detail involved in these cases, they take an extraordinarily long time to move forward. However, we keep at it—-every day—-and look forward to being able to tell you in future newsletters of the concrete accomplishments made in these extremely complicated cases.
We continue to receive complaints regarding various hospitals nationwide. We are doing our best to address those concerns through the remainder of the year. To do so we need your feedback. The healthcare accessibility issues typically raised by our members are:
* Parking problems
* Lack of accessible restrooms, both in patients’ rooms as well as public restrooms throughout the facility Inaccessible entrances and paths of travel throughout medical facilities
* Exam rooms
* Examining tables
* Mammography areas
* Emergency area, including their restrooms, examining tables, etc.
* No effective communication for the visually and hearing impaired.
If any of you has had bad experiences in your communities with hospitals or other medical facilities, 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.
We are committed to creating the legacy of an accessible world. Please help us to help ALL of us. Thank you!
We also continue to receive complaints regarding various cities and municipalities nationwide. We are doing our best to address those concerns. Accordingly, we are again asking for your feedback. The issues typically raised by our members regarding access to government services, programs, or activities are:
* Parking problems at government buildings and facilities
* Inaccessible city streets and sidewalks
* Lack of curb ramps/cuts at city street intersections
* Lack of accessible public restrooms
* Lack of wheelchair ramps, inaccessible entrances and paths of travel to government buildings, such as courthouses, post offices, or voting facilities No effective communication in government facilities, for the visually and hearing impaired.
If any of you has had bad experiences in your communities, we want to know so that we can incorporate those concerns into our current efforts. We are interested in working hard to create accessibility to all communities.
In this arena as well, we are committed to creating the legacy of an accessible world. Please help us to help ALL of us! Thank you!
a. City of Miami Beach, Florida – The City was sued twice before by other groups. Edward Resnick and “Access Now” declined to sue, hoping to be able to work with the city without the need for litigation. However, after several years of frustrating efforts to do so, the need for litigation was felt to be unavoidable. Accordingly, we filed suit in 1999. Parts of the suit were settled and parts were dismissed. Subsequently, we filed suit in July of 2003 for the remaining items. We are happy to be able to tell you that the case was settled in December of 2004. In addition to all other aspects that were previously settled, this suit now encompasses all city parks and playgrounds, recreation facilities, curb cuts and sidewalks. The two actions together, along with voluntary compliance on some issues outside of the scope of the settlements, have now resulted in a comprehensive settlement covering ALL aspects of accessibility throughout the City of Miami Beach, something which was very, very dear to the heart of Edward Resnick, who grew up there! It is especially pleasing to be able to inform you that the judge in this case, Judge James Lawrence King, during the final settlement hearing, paid effusive compliments to all involved on both sides of the case and called the settlement monumental!!!! The judge also made it VERY clear that he wished to be kept informed about the compliance progress made in this case. We are delighted to be able to report this to you!!!
b. City of Miami, Florida – This case was filed on May 9, 2002, seeking access to public rights of way and other related areas relevant to pedestrian activity in the commercial areas and in and around parks within the City of Miami. A Settlement Agreement was reached on April 3, 2003. The case is presently in the post-settlement stage with at least 50% of A.D.A. compliance to be completed by April 2008, with the remaining portion to be completed by April 2011. “Access Now” is monitoring the city’s progress to see that it adheres to the settlement timetable.
c. Miami-Dade County, Florida – This case was filed on May 9, 2002, seeking access to public rights of way and other related areas relevant to pedestrian activity around county roads within the City of Miami. A Settlement Agreement was reached on May 19, 2003. The case is presently in the post-settlement stage with all A.D.A. compliance to be completed by May 2008. “Access Now” is monitoring the city’s progress to see that it adheres to the settlement timetable
d. City of Tallahassee and Leon County, Florida – This case was filed on March 2, 2001, seeking access to the streets, roads, highways, pedestrian walkways, and curbs owned and/or maintained by the Defendants. A Settlement Agreement was reached on November 11, 2002. The modifications have been scheduled for (15) particular geographic zones. The case is presently in the post-settlement stage with all A.D.A. compliance to be completed by November 2007. “Access Now” is monitoring the city’s progress to see that it adheres to the settlement timetable.
e. City of Hollywood, Florida – This case was filed in April of 2000 seeking access to parks and public ways. A Settlement Agreement was concluded two years later. The city has until August of 2007 to complete its alterations and modifications as per the Settlement Agreement. It has completed the necessary planning and appropriated monies to carry out the projects. We continue monitoring the city’s progress toward full compliance. We are particularly pleased that when the work is finished Hollywood’s parks will be accessible to the disabled. Taking care of its parks is one of a city’s most important responsibilities, and we are proud of the role “Access Now” has played in upgrading Hollywood’s parks so they will be open to all who want to use them.
f. City of Sonora, California – The city agreed to a comprehensive review of all of its facilities, programs and services to make them A.D.A. compliant. To this end it will complete a Self-Evaluation form provided for by the A.D.A. to identify non-compliance, no later than February 28, 2005. The Self-Evaluation will include such things as removal of physical barriers, changing policies and practices that limit participation by individuals with disabilities and considering if the city’s communications with the disabled (such as its use of readers, interpreters, etc.) are as effective as its communications with the non-disabled. Based upon its Self-Evaluation, the city will prepare a Transition Plan by April 30, 2005, which will state how it will remedy all non-compliance. After “Access Now” reviews the Transition Plan and proposes changes or additions it believes are required, the parties will make a good faith effort to agree on a final Plan that will enable Sonora to begin the required modifications or alterations by August 30, 2005. The city is to be A.D.A. compliant by March 31, 2006. The objective of the settlement agreement is to remove all barriers that deny disabled individuals their right of full participation in the city’s activities and affairs. When completed, Sonora will have one of the finest municipal plans to insure participation by its disabled community.
g. City of Midfield, Alabama – This case involves modifications at the Midfield Recreation Center to bring it into A.D.A. compliance. It was filed in May, 2002, and a settlement agreement was reached eleven months later. The settlement required that all modifications agreed upon would be completed by February, 2004. The time was extended to allow the city the opportunity to apply for Community Development Block Grant funds from the federal government. The city’s application was successful. These funds allowed it to perform more modifications than would have been possible without them. Construction commenced early in January. It should be complete in April 2005. This is another example of a defendant doing the right thing after being informed of alternative solutions.
We have also settled a case against the City of Stuart, Florida, with the alterations and modifications to be completed by September of next year. The post-settlement compliance work in the City of Surfside, Florida case, which was settled before our last newsletter, has been completed.
Collier County, FL
On December 6, 2004, we entered into a settlement agreement with the county to make Golden Gate Community Park accessible to the disabled community. The alterations and modifications are to be completed by June of this year. This settlement makes an important public recreational resource accessible to the entire community, including its disabled residents and visitors. Once complete, this will be a tremendously accessible public park and true asset to the community. Golden Gate Community Park will soon be a place that lives up to its name.
Miami-Dade County, Florida Courthouse
This case was filed in 1999, and a settlement was reached. Modifications were made to allow access to the building and its public areas. This is an important case because access to the courts is paramount for all residents. If we could not come before the courts because of architectural barriers, our rights would be rendered meaningless.
Fort Lauderdale and Palm Beach International Airports
The cases have been settled, and the modifications have been implemented to comply with the A.D.A. These settlements provide increased accessibility and mobility for the disabled at two busy airports. These are very important precedents for the disabled traveling public.
SeaWorld Theme Parks
These parks, owned and operated by the Busch Entertainment Corporation, one of the Anheuser-Busch Companies, have been simply extraordinary in their approach to increasing accessibility at their several parks across the country. SeaWorld and the other BEC Parks have worked with “Access Now” and its consultants to continually improve access for individuals with disabilities.
The outcome of all this is that the ir theme parks are outstanding in terms of accessibility to the disabled community. They have gone so far as to prepare and review with “Access Now” a large, comprehensive policy which clearly sets forth which of their attractions and rides are SAFELY accessible to people with a wide variety of disabling conditions, whether temporary or permanent.
SeaWorld’s amazing understanding and acceptance of the needs of the disabled community stand as a shining example of what can be done when the will is there. We salute them and we are very, very proud to have been a part of their exemplary effort!!!
Tennessee Riverboat Co.
This case against the City of Knoxville, an individual defendant and two corporate defendants operating a riverboat on the Tennessee River was finally settled with the final defendant in August of 2004. The defendants have agreed to make the riverboat, boarding docks, parking facilities and restrooms A.D.A. compliant by March 1, 2005. This settlement will allow disabled people to enjoy rides on these riverboats on this scenic river. Once again we have succeeded in making transportation and recreation opportunities available to all who want to use them.
Holland America and Costa Cruise Lines
A fairness hearing was recently held in these cases and the Class Action certification was granted 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 can now be 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, so far.
“Access Now” settled cases requiring Greyhound Lines to make modifications to its bus stations in Seattle, WA and Birmingham, AL. The modifications have been completed in Birmingham, and Seattle will be completed in the first half of 2005. These cases represent important upgrades in inter-city transportation for the disabled traveling public in those cities.
“Access Now” brought suit against the Los Angeles Dodgers, Indian River County and other defendants claiming a lack of accessibility as required by the A.D.A. at its Dodgertown spring training facility in Vero Beach. The defendants denied any and all liability. However, we are delighted to advise you that the case has been amicably settled without admission of liability by any party. This is a case where the confidentiality provision prohibits us from offering more in-depth commentary on the settlement.
This Reading, Pennsylvania restaurant entered into a settlement agreement on July 22, 2004, with all access improvements to be completed by September 1, 2004. After the restaurant satisfied its settlement agreement obligations and came into compliance with the A.D.A., a local group of disabled people decided to have their annual holiday party there. This outcome is a testimony to the work that “Access Now” is doing. Making public accommodations more available to the disabled population is our goal. As this case illustrates, achievement of that goal benefits not only the disabled but also those who receive their business.
This settlement of this case in 2002 stands as one of our landmarks, involving as it does a large university (in Atlanta, Georgia). Originally, the complaint centered around the housing afforded to one of its graduate students in the law school, who is a permanent wheelchair-user. The case evolved into one encompassing all of the buildings on the entire campus and, as such, extends accessibility compliance to a student body of 11,300, in both the undergraduate and graduate schools of the university, as well as 2,500 faculty members. Therefore, the positive impact of this settlement cannot be overstated!
Not all cases work out as we hope they will when they are filed. Southwest Airlines was one of those cases. The District Court found that Southwest Airlines’ Internet web site, Southwest.com, was not a “place of public accommodation”, and, therefore, the A.D.A. did not require it to be accessible to the visually disabled by means of a screen reader. The District Court held that under the A.D.A. a “public accommodation must be a physical, concrete structure.” “Access Now” appealed. On September 24, 2004, the 11th Circuit Court of Appeals dismissed the appeal and found that a court must examine the connections between the public accommodation and the website to determine if the website may be a service of the public accommodation and therefore covered under the ADA. It may yet come to pass that the websites of a physical place of public accommodation will be deemed to require accessibility under the A.D.A. Also, the U.S. Department of Transportation (USDOT) has issued proposed regulations (citing Access Now v. Southwest Airlines) mandating that all airline websites be accessible, including those such as Orbitz, Travelocity, Expedia, etc. This means that the disabled who desire to use airline websites may eventually find relief. You can find the USDOT’s proposed regulations at http://edocket.access.gpo.gov/2004/04-24371.htm. See more about the other parts of proposed regulations in the “GOVERNMENTAL NEWS” section below.
A note about this case: After the 11th Circuit Court of Appeals issued its decision, Southwest Airlines, on its own initiative, significantly upgraded its website to accommodate the visually impaired. Perhaps they calculated that it makes economic sense for them to make a relatively small investment to accommodate potential customers. In any case, as always, “Access Now” cares about the outcome more than the means to it. If, as here, we lose the battle but win the war that is fine with us!
Malls and Shopping Centers
Since the last newsletter, “Access Now” has filed 34 cases against malls and shopping centers. 20 of the cases have been settled with Time Up Dates (when work is to be completed) through the end of 2005. While we are not at liberty to name the malls involved, “Access Now” feels that these comprehensive settlements will significantly improve the quality of life for the disabled at these facilities.
15. Hotels, Restaurants and other types of small businesses: Since our last newsletter. “Access Now” has taken action in approximately 235 cases in these categories. We are not able to list every case. However, we realize that each case is important to the person who has been discriminated against by being denied access to any of these places. We continue to arrive at settlements in these cases as shown on page two. Our attorneys continue to work very hard to achieve favorable conclusions in cases still pending. We will keep you advised of our progress.
Class actions affect a large number of disabled persons, usually because a large number of facilities are involved. In addition to several class action suits which have been pending for some time (such as Brookstone Stores, Victoria’s Secrets, T.J. Maxx, the cruise line industry and cases against five hospital chains), we have one additional class action case in which there has been a lot of action lately:
The case against Arby’s was filed in November, 2002. It involves the A.D.A. non-compliance of approximately 773 Arby’s restaurants owned by RTM Operating Co., Inc. and affiliates in the United States, Puerto Rico and U.S. territories. “Access Now” seeks the removal of architectural barriers in the restaurants. That will allow the disabled better access to a major restaurant chain.
The parties submitted a proposed Settlement Agreement on August 6, 2004. Judge Jose E. Martinez certified the class action on November 9, 2004. He has scheduled a Fairness Hearing (as required by law). The hearing will take place on April 7, 2005 at 10:00 a.m. at 300 N.E. 1st Avenue in the Central Courtroom, in the court room of Judge Martinez.
We are facing several objections to the settlement of this class action lawsuit, including objections as to the adequacy of “Access Now, Inc.” to represent the class. In this regard, it is very important that a large number of members of “Access Now” appear at this hearing, to clarify for the judge that we do indeed represent persons with a wide variety of disabilities beyond mobility, such as vision impairment, hearing impairment, psychological impairment, etc., etc.
Additionally, if you, as a member of “Access Now”, have experienced any incident of accessibility discrimination at any Arby’s restaurant, we urge you to let us know. This is very important, indeed critical, to Access Now’s obtaining approval of this settlement. If you have any questions about any of this, please do communicate with us.
This is an area of A.D.A. law about which too little is known and, even when known, it is seriously misunderstood. Our database reflects a growing number of members who have service dogs and the complaints that come to us from all over the nation are increasing daily. For those of you who may not be familiar with this aspect of the A.D.A., service dogs are no longer limited to what was known for years as seeing-eye dogs or guide dogs for the blind. These remarkable animals now come in all shapes and sizes and they are trained to perform an astounding variety of tasks for their owners, including seeing, hearing, balance, psychiatric functions as well as those who are trained to alert their owners to an oncoming epilepsy seizure! All these amazing animals are becoming increasingly important to their owners, in many cases as important as wheelchairs or other assistive devices, and they are recognized by and covered under the A.D.A. We continue to try to locate attorneys nationwide who are knowledgeable on this issue and we shall continue to refer and monitor these cases.