Rule would provide better court access to the disabled
By Jan Pudlow
February 15, 2008
The art of compromise paid off for Matt Dietz, who honed a new rule to make it easier for persons with disabilities to attend court proceedings. At the close of the meeting January 17, Dietz, chair-elect of The Florida Bar’s Equal Opportunities Law Section (EOLS) and chair of the Disability Independence Group, smiled triumphantly when the Rules of Judicial Administration Committee voted unanimously not only to approve EOLS’ proposal to bolster Rule 2.540, “Notices to Persons with Disabilities” — but to expedite the matter so that it will be heard in the current rules cycle while Fred Lewis is still chief justice, rather than wait until 2012. Now, the new proposed rule is on the way to The Florida Bar Board of Governors for comment and the Supreme Court for approval.
“I am very happy. This is a wonderful experience in developing a process that will ensure that people with disabilities — no matter who they are who need to use the court process — will be able to,” Dietz said. Dietz said he wanted the proposed rule in this year’s cycle “as an acknowledgement to Chief Justice Lewis’ leadership. It should be noticed that he is the person from the top who actually brought this issue to a place of prominence within the Bar and bench.”
Seven months ago, Dietz faced an uphill battle when he first presented the proposed rule to the committee at the Bar’s Annual Convention, arguing Florida’s existing rule was inadequate because there was no guarantee of standard statewide procedures, accommodations were limited to persons compelled to attend court, and accommodations for disabled lawyers must be paid by their employers. The matter was close to sputtering to a halt, until the committee decided to allow 18th Circuit Judge Lisa Davidson —
chair of a subcommittee that originally voted against the rule change — to reconstitute a work group with more members, including EOLS members and persons with disabilities.
During those seven months, the work group members sympathized when deaf attorney Scott Harrison personally appeared to detail why he had sued the state because he was denied real-time court reporting services in criminal trials unless he paid for it himself, an expense he said he couldn’t afford. But work group members were uneasy taking on interpretations of substantive law that dangled unsettled in Harrison’s pending federal case. The proposed rule Dietz originally brought to the September meeting, Judge Davidson said, “had not only procedural issues, but policy issues, and substantive issues.”
Meanwhile, Harrison reached a settlement with the Office of State Courts Administrator (OSCA) granting him the accommodation he sought.
Immediately, Chief Justice Lewis approved new statewide guidelines that spell out that attorneys who are deaf or hard of hearing will now be provided with real-time court reporting services at court expense in county and circuit court criminal trials.
Dietz came back with a revised proposed amendment he described as ensuring full compliance with Title II of the ADA and to promote access for persons with disabilities for court programs and services. In November, the work group met via two teleconferences to hammer out procedural issues, while working to incorporate suggestions contained in memos from Debbie Howells, statewide ADA coordinator of OSCA. “I am thrilled,” Judge Davidson said, after the unanimous vote January 17 at the Bar’s Midyear Meeting in Miami, on what she described as “99.9 percent” Dietz’s rule. “It was wonderful working with Matthew Dietz. He was willing to compromise where compromise was needed. He didn’t dig his heels in. He was willing to say, ‘Alright. That makes sense. We want to compromise here; that is important there.’ He was really very, very amenable to compromise and understood what the Rules of Judicial Administration work does, and what our authority is — and that is procedure,” Judge Davidson said.
In a nutshell, Dietz said the proposed rule “will bring more order and less ad hoc decision-making on what is a proper accommodation to court programs and services, for any individual with a disability.” He said the revised proposed rule “adopts grievance procedures similar to that on the Supreme Court’s Web site, but has only been adopted by a few counties.” It gives step-by-step procedures on what notice has to be given, and if the accommodation has not been granted, how the person with disabilities may appeal. “This does not change any of the requirements of the Americans with Disabilities Act, but facilitates that accommodations are given and justice is given, not only to litigants or parties, but any user of the system,” Dietz said.
At the work group’s September 6 meeting at The Florida Bar’s General Meeting in Tampa, when Harrison detailed his plight as a deaf lawyer, Third District Court of Appeal Judge Alan Schwartz abstained from voting, declaring it not an appropriate issue for a rules committee. But at the January 17 meeting — after the proposed two-page rule succinctly stuck to procedural matters — Judge Schwartz was the one who moved that the rule be adopted.
More than seven million businesses and all state and local government agencies would be affected. The proposal includes some exemptions for parts of existing buildings, but any new construction or renovations would have to comply. The new standards would affect everything from the location of light switches to the height of retail service counters, to the use of monkeys as “service animals” for people with
disabilities, which would be forbidden. It is scheduled to be published in the Federal Register on Tuesday, with 60 days for public comment. After considering those comments, the government would issue final rules with the force of law.
Already, the proposal is stirring concern. The United States Chamber of Commerce says it would be onerous and costly, while advocates for disabled Americans say it does not go far enough.
Since the disability law was signed by the first President Bush, advances in technology have made services more available to people with disabilities. But Justice Department officials said they were still receiving large numbers of complaints. In recent months, the federal government has settled lawsuits securing more seats for disabled fans at Madison Square Garden in New York and at the nation’s largest college football stadium, at the University of Michigan. The Census Bureau says more than 51 million Americans have some kind of disability, with nearly two-thirds of them reporting severe impairments.
The proposed rules, under development for more than four years, flesh out the meaning of the 1990 law, which set forth broad objectives. The 215,000-word proposal includes these new requirements:
• Courts would have to provide a lift or a ramp to ensure that people in wheelchairs could get into the witness stand, which is usually elevated from floor level.
• Auditoriums would have to provide a lift or a ramp so wheelchair users could “participate fully and equally in graduation exercises and other events” at which members of the audience have direct access to the stage.
• Any sports stadium with a seating capacity of 25,000 or more would have to provide safety and emergency information by posting written messages on scoreboards and video monitors. This would alert people who are deaf or hard of hearing.
• Theaters must provide specified numbers of seats for wheelchair users (at least five in a 300-seat facility). Viewing angles to the screen or stage must be “equivalent to or better than the average viewing angles provided to all other spectators.”
• Light switches in a hotel room could not be more than 48 inches high. The current maximum is 54 inches.
• Hotels must allow people with disabilities to reserve accessible guest rooms, and they must honor these reservations to the same degree they guarantee other room reservations.
• At least 25 percent of the railings at fishing piers would have to be no more than 34 inches high, so that a person in a wheelchair could fish over the railing.
• At least half of the holes on miniature golf courses must be accessible to people using wheelchairs, and these holes must be connected by a continuous, unobstructed path.
• A new swimming pool with a perimeter of more than 300 feet would have to provide “at least two accessible means of entry,” like a gentle sloping ramp or a chair lift.
• New playgrounds would have to provide access to slides, swings and other play
equipment for children who use wheelchairs.
The Justice Department acknowledged that some of the changes would have significant costs. But over all, it said, the value of the public benefits, estimated at $54 billion, exceeds the expected costs of $23 billion. In an economic analysis of the proposed rules, the Justice Department said the need for an accessible environment was greater than ever because the Iraq war was “creating a new generation of young
men and women with disabilities.” John L. Wodatch, chief of the disability rights section of the Justice Department, said: “Disability is inherent in the human condition. The vast majority of individuals who are fortunate enough to reach an advanced age will benefit from the proposed requirements.” By 2010, the department estimates, 2 percent of the adult population will use wheelchairs, and 4 percent will use crutches, canes, walkers or other mobility devices. Likewise, it said, as the population ages, the number of people with hearing loss will increase.
Under the 1990 law, businesses are supposed to remove barriers to people with disabilities if the changes are “readily achievable,” meaning they can be “carried out without much difficulty or expense.” The Bush administration is proposing a safe harbor for small businesses. They could meet their obligations in a given year if, in the prior year, they had spent at least 1 percent of their gross revenues to remove
barriers. Curtis L. Decker, executive director of the National Disability Rights Network, a coalition of legal advocates, said: “Safe harbors make us very nervous.
A small business could spend the requisite amount of money and still not be accessible.”
Randel K. Johnson, a vice president of the United States Chamber of Commerce, said the proposed rules “are so long and technically complex that even the best-intentioned small business could be found out of compliance by a clever lawyer looking to force a settlement.” The Justice Department cited the “monetary cost cap” as one of several steps it was taking to limit the rules’ impact on small businesses. But Mr. Johnson said he feared that courts would view the ceiling as a floor and tell businesses they should spend 1 percent of their revenues on removing barriers.
The proposed rules affirm the right of people with disabilities to use guide dogs and other service animals in public places, but they tighten the definition to exclude certain species. When the existing rules were adopted in the early 1990s, the Justice Department said, few people anticipated the current trend toward “the use of wild, exotic or unusual species”,(such as monkeys, reptiles; amphibians; rabbits, ferrets, rodents and most farm animals) as service animals. Under the rules, the management of a public accommodation could ask a person with a disability to remove a service animal if the animal was out of control or not housebroken, or if it posed a direct threat to the health or safety of others.
The rules confirm that people with disabilities can use traditional wheelchairs, power wheelchairs and electric scooters in any public areas open to pedestrians.
But public places could impose reasonable restrictions on two-wheeled Segway vehicles, golf carts and “other power-driven mobility devices” used by those with disabilities.
The Proposed New Standards are available as a 7 MB PDF file from USDOJ’s website at http://www.ada.gov/NPRM2008/ADAnprm08.htm by clicking on the link near
the bottom of that page entitled “Proposed ADA Standards for Accessible Design”.
For commentary on the Proposed Standards please see the following Steve Gold
article, followed by some comments from Phyllis Resnick: