A BRIEF OVERVIEW OF OUR LITIGATION
Since our September Newsletter, Access Now® has made progress in settling cases in several states. We have filed a total of 964 cases since our inception. Presently, there are 136 cases with outstanding Settlement Agreements, requiring alterations or modifications which in several cases should be completed by July 1, 2008, 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 27 additional settlements to make properties A.D.A.-compliant. They include:
Access Now® continues to assert itself nationally in scope. The 13 states in which cases have been settled range from the South and the mid-Atlantic to the Great Plains, Rocky Mountains and the Pacific shore. Our headquarters state of Florida accounted for 11% of settlements over the past six months.
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 us 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:
City of Cape Coral, Cape Coral, Florida
Town of Ocean City, Ocean City, Maryland
Northern Oklahoma College, Enid, Oklahoma
Cruise America, Inc., Mesa, Arizona
Augusta Surgical Center Augusta GA
Cartersville Medical Center Cartersville GA
Centennial Surgery Center Nashville TN
Coliseum Medical Center Macon GA
Coliseum Same Day Surgery Center Macon GA
Creighton University Medical Center Omaha NE
Doctors Hospital Augusta GA
Desert Regional Medical Center Palm Springs CA
Doctors Hospital of Manteca Manteca CA
Doctors Medical Center of Modesto Modesto CA
Grand Strand Regional Medical Center Myrtle Beach SC
Henrico Doctor’s Richmond VA
Lakeview Regional Medical Center Covington LA
Las Palmas Medical Center El Paso TX
Medical City Dallas Hospital Dallas TX
Plaza Medical Center of Ft. Worth Ft. Worth TX
Retreat Hospital Richmond VA
Rio Grande Medical Center McAllen TX
South Bay Hospital Sun City Center FL
Specialty Hospital of Jacksonville Jacksonville FL
St. Mark’s Hospital Salt Lake City UT
Twin Cities Community Hospital Templeton CA
West Houston Medical Center Houston TX
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 numbers of individual hospital cases that have been settled or are moving rapidly toward settlement continues to increase every week. The five Tenet Healthcare Corporation (Tenet) facilities listed in the prior section had a Fairness Hearing on January 26th in Miami. Another Fairness Hearing was held on June 3rd regarding an additional 18 Hospital Corporation of America (HCA) medical facilities.
We continue to be actively involved in cases involving medical institutions because of our strong belief that they constitute one of the most important ways to enhance the quality of life of the disabled community. These hospital settlements will make a
great difference to members of our community. The settlements show that the ADA can work when there are dedicated advocates and attorneys using it for our benefit.
THE 27 FACILITIES HAVE A TOTAL OF ALMOST 4800 BEDS IN TEN STATES.
We want to give much deserved praise to the firm of de la O, Marko, Magolnick and Leyton, and particularly to their associate, Charles D. Ferguson, for their stellar work in pursuing all the hospitals listed above and many others still in the pipeline!
City of Cape Coral, Florida
This case involves the city’s access problems with sidewalks, curb ramps, parking lots and public buildings. After years of litigation, the case against the city has been resolved. It has agreed to spend up to $250,000 to remedy these access problems. Indeed, Cape Coral has already completed a large percentage of the work, and the amount it has agreed to spend is far more than the expert’s estimates to make the repairs. Over the next several years, the city will undergo a significant change accessibility-wise due to our efforts.
Town of Ocean City, Maryland
The town has agreed to make access and parking improvements and modifications overt the next five years as required by the ADA. This includes upgrading its streets, parks, stadia and other recreational areas, restrooms and the Convention Center. The changes will considerably improve the accessibility of the town for disabled residents and visitors.
Cruise America, Inc.
This is another case involving accessibility to rental vehicles for the disabled. Cruise America rents Recreational Vehicles. The settlement in this case requires the company to make it RVs accessible to the disabled. this
includes the purchase of hand controls for at least two of its vehicles, discontinue its policy that the driver and credit card holder must be the same individual allow the use of service animals and provide assistance for vision-impaired renters. Cruise America’s Worldwide Reservation Center will designate a person as it ADA Coordinator to implement the company’s policy for the Provision of Services to
Individuals with Disabilities. We want to acknowledge our attorney, Gene Zweben, and plaintiff Fred Shotz for their efforts in securing this agreement protecting the mobility rights of the disabled.
Northern Oklahoma College
The Enid, Oklahoma college has begun implementing a four-year plan to remove access barriers on its campus. It has created an ADA Committee to address issues regarding barriers that interfere with access to services and facilities for persons with disabilities. Over the next four years the committee will designate projects on the Enid campus to remove or remediate barriers identified by our expert. There will be a review of all projects at the end of each academic year through 2012. The resolution of this case will make the Northern Oklahoma College campus a much more accessible place for the disabled.
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 plan to update access is in place, and the modifications are underway. The construction is on schedule according to the agreement between Sonora and Access Now® as embodied in the city’s transition plan.
Access Now® and member Kami Barker sued Emory University and its architects and engineers for denial of access in university housing projects. We settled with the University to remedy ADA and other accessibility violations. After a trial in August, 2006 before an Atlanta jury, a verdict for liability and damages was returned against the builders, Trammel Crow Residential, but not against the architects, Niles Bolton Associates. The outcome was less favorable than we had expected, and we appealed the 11th Circuit Court of Appeals. A court-ordered appellate mediation was unsuccessful, and we are now preparing to present our appeal. The case is in the briefing stage of the appeal process. We will keep you informed as to any further developments in this groundbreaking case (the first jury trial under the Fair Housing Act.) Kudos to Matthew Dietz of the law firm of Matthew W. Dietz, P.L., for his diligent pursuit of this particularly difficult and complicated case!
However, with regard to Fair Housing issues, much of interest is happening. The U.S. Government has substantially increased the number of Fair Housing Act lawsuits being brought. See the New York Times articles on Aug. 14th
%20Housing%20Act&st=cse) and Aug. 19th (http://www.nytimes.com/2008/
08/19/nyregion/19disabled.html?scp=1&sq=Fair%20housing%20act&st=cse) of this year. We are so pleased and proud to highlight again that Matthew Dietz and Access Now®, in the Emory case discussed above, brought the very first case to go to trial in the arena of the Fair Housing Act!
Additionally, on HUD’s Fair Housing Act link (http://www.hud.gov/offices/fheo/index.cfm) there is a wide variety of discussions regarding the Fair Housing Act as it applies to disabled persons. Among the many issues in connection with this is one, in particular, about which we feel it is especially important for our readers to be aware: if you are disabled and you are purchasing a home which is in the design phase, you have the right to ask the developer to have it designed and constructed with the accessibility parameters which you require. If that increases the cost, you would be required to pay that increase, but the developer would be required to grant your demands.
Class actions affect a large number of disabled persons, usually because a large number of facilities are involved. We have class actions pending many offenders. These cases move slowly, but there is progress to report: Arby’s: “Access Now”® brought suit against Arby’s, based on the A.D.A. noncompliance 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. We are continuing with our post-settlement inspections of the Arby’s locations. To date 100 locations have work underway after inspections have been completed. These locations should be ADA-compliant by year’s end. Other locations are now being inspected so that work can begin on them. Again, we wish to acknowledge the fine work of Josh Entin and Bob Switkes of Rosen, Switkes and Entin, PL for this wonderful result.
Dollar & Thrifty Rent-a-Car: This class settlement and consent decree with Dollar and Thrifty rental car companies was approved on December 7, 2006. The agreement contemplates the most comprehensive accessibility program ever implemented in the rental car industry with what is believed to be the third largest rental car company in the United States.
Steady progress continues on the schedule set forth in the Consent Decree. Defendants have developed an updated facilities list reflecting the fact that they added 38 facilities to the listing, bringing the total to 272. Furthermore, an additional 30 facilities have been surveyed so far this year and there are plans to survey an additional 58 locations during the balance of 2008, bringing the total percentage of facilities surveyed to 54%. Finally, Defendants have completed remediation work on 51 facilities so far this year and have plans to work on an additional 52 locations during the balance of 2008, bringing the total percentage of facilities undergoing remediation work to 38%.
LITIGATION BY OTHERS
We want to keep you informed about important recent litigation around the country, of which you might not be aware, as well as to update information from December’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!