Introduction

Newsletter – September 2005 (page 2)

Newsletter – September 2005 (page 2)

AND NOW, TO OUR UPDATE

 

Membership

We now have 1,007 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 number 14, representing 7 law firms, and 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 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. We want to thank Jay Acevedo of Color Express Printing for kindly printing our (letterhead) stationery free of charge. Finally, I want to thank my assistant, Thomas Miller, for his efforts in making certain that the administrative aspects of the organization run smoothly.

 

A BRIEF OVERVIEW OF OUR LITIGATION

Since our February Newsletter, “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 112 cases with Settlement Agreements outstanding, requiring alterations or modifications to be completed on August 1, 2005, or later. During the past seven months, “Access Now” has entered into 32 additional settlements to make properties A.D.A.-compliant. They include:

Grocery Stores 2

Hotels/Motels 3

Malls 5

Miscellaneous Entities 1

Museums 1

Office Building 1

Restaurants 10

Sports Venues 3

Stores 5

Transportation 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 16% of settlements over the past seven months.

Alabama 6

Florida 5

Maryland/DC 6

Oklahoma 4

Pennsylvania 2

Tennessee 9

We will keep expanding our geographical presence 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. Contrary to rumors, we remain 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:

Restaurants

Red Lantern Restaurant, Trussville, AL

Spezie Restaurant, Washington, DC

The Clock Restaurant and the Buddha Bar & Grill of Ft. Myers, FL

Mellow Mushroom, Applebee’s and Wildhorse Saloon, all of Nashville, TN

Taco Mayo, Stillwater, OK

McDonald’s – Mount Penn in St. Lawrence, PA

Dockside Waterfront Restaurant, Stuart, FL

Stores

Alabama Thrift Stores of Birmingham and Midfield, AL

NAPA Auto Parts, Stillwater, OK

Toys R Us, Antioch, TN

Mac’s One Stop, Birmingham, AL

West Lawn Printing, Reading, PA

Malls

Westfield Shoppingtown, Annapolis, MD

Rosewood Hills Shopping Center, Stillwater, OK

Bryant Square, Edmond, OK

Pembroke Lakes Mall, Pembroke Pines, FL

Hotels

Best Western, Mobile, AL

Quality Inn, College Park, MD

Opryland Resort and Convention Center, Nashville, TN

This hotel, situated near the Grand Ole Opry House in Nashville, is among the largest in the country. We have been extremely pleased with the comprehensive nature of the settlement which has been arrived at and delighted to share this news with our members. Kudos to the owners and operators of the hotel for their outstanding cooperation with our attorney and consultant!

Sporting Venues

Greer Baseball Stadium, Nashville, TN

Southern Starz Gymnastics, Cape Coral, FL

Talladega Superspeedway, Talladega, AL

Grocery Stores

Kroger’s, Knoxville, TN

HG Hill Food Store, Nashville, TN

Other

National Aquarium, Baltimore, MD

Helen Keller Birthplace, Tuscumbia, AL

Commonwealth Office Building, Washington, DC

 

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. The highlights of our accomplishments since the last newsletter are:

Hospitals

FOR THOSE OF YOU WHO DID NOT HAVE THE OPPORTUNITY TO READ OUR FEBRUARY NEWSLETTER, WE WOULD LIKE TO REPEAT A REQUEST THAT WE MADE REGARDING HOSPITALS AND MUNICIPALITIES.

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 and in public areas of facilities
  • Inaccessible entrances and paths of travel throughout medical facilities
  • Exam rooms and 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 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.

North Mississippi Medical Center

This is the largest hospital in northeastern Mississippi. “Access Now” signed a settlement agreement with the hospital in July that resolved the case to the mutual satisfaction of the parties.

 

Municipalities

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 typical issues raised by our members concerning 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 (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 regarding handicapped accessibility in your communities, we want to know so that we can incorporate those 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!

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.

City of Sonora, California

The city has agreed to make all of its facilities, programs and services A.D.A. compliant. There have been several intermediate evaluations and milestones for the city to meet. Sonora 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 to 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.

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 then 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 2005 and was completed in April. This is another example of a defendant doing the right thing after being informed of alternative solutions.

Collier County, FL

Last December we entered into a settlement agreement with the county to make Golden Gate Community Park accessible to the disabled community. We are pleased to announce that the alterations and modifications have recently been completed. This makes an important public recreational resource accessible to the entire community, including its disabled residents and visitors.


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 their 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!!!We will keep you apprised in future newsletters of their progress.

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.

Greyhound Lines

The modifications have been completed on the terminal in Seattle, as per the agreement. Modifications were previously completed on the Birmingham terminal.

Talladega Superspeedway

“Access Now” reached an amicable resolution of litigation pending in federal court in Alabama with the owner of this track. In reaching the agreement, the owners of this facility have demonstrated they are committed to providing equal access at Talladega Superspeedway.

Emory University

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 on 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!

Malls and Shopping Centers

Of the 20 cases we 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, “Access Now”, 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.

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 Brookstone Stores, the cruise line industry and cases against five hospital chains. These cases move slowly, but there is progress to report in several of them:

Arby’s

“Access Now” brought suit against Arby’s (RTM Operating Co., Inc.) 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 the removal of 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. He had not issued a final decision at the time this newsletter went to press.

Brookstone Stores

The parties have agreed in principle on all major issues. What remains is for the legal papers to be drafted and then presented to the court. This is not an easy task since almost all of the stores have unique floor plans that do not lend themselves to “one-size-fits-all” accessibility language that would be expected to be found in most class action settlements. At a recent hearing held in his chambers, Magistrate Judge Peter Palermo, who is overseeing this case for Judge Joan Lenard, was highly complimentary to all parties involved, saying that he has been involved with many A.D.A. cases, and this one has been handled exactly as they should all ideally be! We look forward to seeking the court’s approval for this settlement in the very near future.

Norwegian Cruise Line Ltd.

This case has been scheduled for trial during the three week period beginning December 27, 2005. In the interim, settlement discussions are continuing. We hope to have this case resolved before the trial date. Should that goal prove to be elusive, we will be ready for trial.


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!

  • First, KUDOS to the Association for Disabled Americans, which has been successful in its seven-year effort to have the Publix Super Markets chain improve access for the disabled. On July 22 U.S. District Judge William M. Hoeveler of Miami approved a settlement that requires Publix to cure A.D.A. violations at its 857 stores in five states over a six year period. The alterations and modifications at the stores will include changing the heights of ATMs, service counters, deli ticket dispensers and produce bags to accommodate people in wheelchairs. Publix will also provide a text telephone in each store and additional handicap parking where necessary.
  • In Spector v. Norwegian Cruise Line Ltd., the U.S. Supreme Court held that Title III of the A.D.A. applies to foreign flagged cruise ships. The decision means that Title III’s protections will make the ships’ facilities and procedures less onerous for disabled passengers and potential passengers. One of the plaintiffs’ attorneys remarked that “This decision goes a long way toward ending the pervasive discrimination long faced by cruise line passengers with mobility impairments.”
  • The Regal Entertainment Group, the nation’s largest theater chain, has agreed to a settlement with the U.S. Department of Justice (D.O.J.) that requires it to provide increased accessibility to mobility impaired patrons at nearly 1,000 of its stadium-style theaters over the next five years. The improvements will include integration of wheelchair seating spaces into their seat rows, unobstructed views of the screen, at least one companion seat next to each wheelchair space and away from the less desirable seats in the very front of the theater. In its other 5,000 plus theaters, Regal will relocate wheelchair seating away from the screen to the extent possible without major construction. This settlement is much stronger than the judgment that the D.O.J. won in 2003 in the same case. The case is U.S. v. Hoyt Cinema Corp. et al, (D. Mass.).
  • The Archstone-Smith Trust, the nation’s third largest apartment real estate trust, has agreed to pay more than $20 million to remedy design and construction defects to allow greater access to the disabled. These include such things as widening bathrooms and doorways that are too narrow and lowering mailboxes that are too high for people using wheelchairs. The company will renovate approximately 12,000 units at 71 apartment complexes it owns nationwide. See Equal Rights Center et al v. Archstone-Smith Trust (D. Maryland).
  • Finally, a case that gives us cause for concern. In Doran v. Del Taco, Inc. 373 F. Supp. 2d 1028 (C.D. Cal. 2005), U.S. District Judge Gary Taylor denied attorney’s fees under the A.D.A. because prior to bringing suit the plaintiff had not given a pre-litigation warning notice to the defendant allowing it to cure any A.D.A. violation (which is not required under the A.D.A.). The judge did this of his own accord; the parties only disagreed over the amount of the fee. The action looks like a judicial end run around Congress’ consistent refusal to enact a pre-suit notification requirement. It is part of a seeming trend to render the law ineffectual undertaken by some judges hostile to the A.D.A. We will have to see if the trend continues. An appeal is pending.

"Newsletter – September 2005" table of contents

  1. Newsletter – September 2005
  2. AND NOW, TO OUR UPDATE
  3. INFORMATION RESOURCES ON AND OFF THE WEB
  4. GOVERNMENTAL NEWS
  5. MISCELLANEOUS ITEMS OF INTEREST
  6. Page 6