ADA Abuses--Time for a Change in Law re: Property Violations?

[toocherie]

In another thread I raised an issue about the ADA and that it was not a "perfect" law. I mentioned that I have seen one particular abuse for quite some time and I thought it was time for a change in the law to address this abuse:

Here in California (and I'm sure in other states too) there are law firms that are essentially "mills" for processing ADA violation claims against property owners and business owners. Essentially, these mills send out disabled people to find technical physical violations of the ADA. Now, don't get me wrong--if there are violations they should be corrected. However, these mills are not as interested in getting the violations corrected as they are in immediately filing lawsuits and getting financial settlements/attorneys fees out of the deal. In my experience, getting the violation fixed becomes secondary in a lot of cases.

Some of these "violations" can be things like the toilet paper holder is 1/2" too high. These violations could be easily fixed but in my experience a lot of times the property/business owner is not aware they are in violation (sometimes cities--which "interpret" the ADA--change their requirements). It doesn't matter--the property/business owner is not given notice and a chance to fix the problem (which many of them would gladly do). The lawsuit is filed and they can either incur thousands of dollars in attorneys' fees fighting what could be a $100 repair problem or they can "pay off" the plaintiff's attorney's fees and make it go away for a couple of thousand dollars. Guess which one gets picked most of the time?

In my opinion, this abuse could be easily stopped if the ADA contained a provision that required the potential plaintiff to notice the property/business owner of the issue and give them a short time (10, 20, 30? days) to fix the problem. If they did not fix the problem within that time frame then the lawsuit could be filed.

I don't believe that most people that end up in violation of the ADA would purposely want to violate the law . . . in a lot of cases they did not know they were in violation and would gladly comply if it is brought to their attention.

I would be interested to know if anyone else on the board has had a similar situation -- or been involved in one of these lawsuits -- on either side -- and what the outcome was.

 

[SueM in MN]

I am going to move this thread to the disABILITIES Community Board, where it will be more on topic.

I don't believe that most people that end up in violation of the ADA would purposely want to violate the law . . . in a lot of cases they did not know they were in violation and would gladly comply if it is brought to their attention.

I agree with you.
I do have a real life situation that happened a few years ago. We went to a family reunion in the small town that my MIL lives in. The reunion was being held at the town pool, which had been recently renovated. My DD wanted to swim and I we went to look at the changing area and found that none of the changing rooms was large enough to get a wheelchair into, much less get DD, her wheelchair and me into it to help her. I went to the desk to ask (figuring the accessible one was probably unisex and in a different area). The person behind the desk told me they had none ("We've never had anyone in a wheelchair want to swim, so why would we need one? if we had one of those it would take 2 of our regular rooms." was the gist of the reason she gave me). I told her that she had a person right there and then who wanted to swim and could not.
When I talked to my MIL about it, she said she was sure they had 'done what they needed to do' and she couldn't 'think of anyone with a wheelchair in the town who would want to swim there," so even though her granddaughter couldn't swim, it didn't occur to her that it was a problem. Apparently the town had an architect who looked at the plans - that was the person who had/caused the problem.
It would be a pretty easy thing to change - combining 2 dressing rooms would do the trick.
I agree that a lawsuit would not be appropriate; what should happen in that kind of situation would be a notification that they are out of compliance and time given to fix it. The architect who should have been reviewing the plans for things like that should have gotten a fine and some mandatory education.

 

[toocherie]

I am going to move this thread to the disABILITIES Community Board, where it will be more on topic.

I agree that a lawsuit would not be appropriate; what should happen in that kind of situation would be a notification that they are out of compliance and time given to fix it. The architect who should have been reviewing the plans for things like that should have gotten a fine and some mandatory education.

Sue--sorry I posted on the wrong board . . . .

and if it was my client I would try to make the architect pay for the physical changes as well . . since he/she should have caught it to begin with. (assuming that there was not a change in interpretation of the ADA after the fact--which sometimes happens)

Interesting that the city/town didn't raise the issue too. Did your DD end up getting to swim? Was there somplace else she could go to change?

But it illustrates my point--would you rather spend your time and money "suing" under the ADA and getting damages or trying to get the violation fixed? In my world, it would be more important to fix the violation (sounds like yours too!) On the other hand--if someone fails to fix the problem after notice then I say -- bombs away!

 

[SueM in MN]

Sue--sorry I posted on the wrong board . . . .

and if it was my client I would try to make the architect pay for the physical changes as well . . since he/she should have caught it to begin with. (assuming that there was not a change in interpretation of the ADA after the fact--which sometimes happens)

Interesting that the city/town didn't raise the issue too. Did your DD end up getting to swim? Was there somplace else she could go to change?

But it illustrates my point--would you rather spend your time and money "suing" under the ADA and getting damages or trying to get the violation fixed? In my world, it would be more important to fix the violation (sounds like yours too!) On the other hand--if someone fails to fix the problem after notice then I say -- bombs away!

No, she didn't because there was no place to change.
I would rather spend the money getting the problem fixed.

On the OTHER hand, I know there are places (specifically some theaters with stadium seating) who knew there was a problem and did nothing to do to fix it, despite knowing the problem existed.

 

[merryweather20]

Has anybody found reporting issues to do any good? I find alot of accessible bathroom doors are oriented so that they open inward, unless the washroom is very large(near me Wal-Mart and Toys R Us) it means I can't use it, since their isn't enough room to go around the door in my wheel-chair to close it. I complained about this at several places and finally just started carrying screw drivers with me everywhere.

I was having problems with the post office too (Letters come to my door, but packages had to be picked up at a non-accessible pharmacy down-town). Several of the phone calls resulted in tears, I finally gave up and paid to rent a box in the next town over who promptly began plowing their snow three feet high on the ramp with the extra spilling over into the accessible parking spaces. They said they'd shovel it out but never did.

Have any of you guys have someone fix something, when you reported it

 

[Ms_Butterfly]

There are times and places for lawsuits, but, IMO, not until after the business has been given the chance to make the correction after being notified of their mistake. There are other things you can do before suing, like sending a letter to the business, making a formal complaint with the DOJ (or DOT for air travel), etc.

Yes, there are some horrible ppl who make a living off pretending to be disabled, going into places with a measuring tape, and sending out form we're-suing-you letters to businesses who have even a portion of an inch off of some tiny thing that could be easily fixed if asked. There is one person in particular who is part of the SD community and he is a terrible person - at least one person has committed suicide because of him - and does exactly this. (I'm certain you have heard of him before. He also tries to tell ppl that he wrote the ADA and many state laws and such ... it is so pathetic and sad that somebody has to stoop so low just for attention [and money]!)

You have prob'ly heard talk of changes to the ADA, to make lawsuits not be able to be done until a grace period has been given to the business to fix something after a formal warning has been sent to them and whatnot. That would be a VERY good change!!

 

[toocherie]

There are times and places for lawsuits, but, IMO, not until after the business has been given the chance to make the correction after being notified of their mistake. There are other things you can do before suing, like sending a letter to the business, making a formal complaint with the DOJ (or DOT for air travel), etc.

Yes, there are some horrible ppl who make a living off pretending to be disabled, going into places with a measuring tape, and sending out form we're-suing-you letters to businesses who have even a portion of an inch off of some tiny thing that could be easily fixed if asked. There is one person in particular who is part of the SD community and he is a terrible person - at least one person has committed suicide because of him - and does exactly this. (I'm certain you have heard of him before. He also tries to tell ppl that he wrote the ADA and many state laws and such ... it is so pathetic and sad that somebody has to stoop so low just for attention [and money]!)

You have prob'ly heard talk of changes to the ADA, to make lawsuits not be able to be done until a grace period has been given to the business to fix something after a formal warning has been sent to them and whatnot. That would be a VERY good change!!

Ms. Butterfly--I am not aware of the person you are specifically talking about--but he sounds terrible. I do know there have been attempts at changing the ADA to have notification requirement but certain groups have pressured Congress to not make the change--not sure if it's disabled rights groups who really are concerned about erosion of the ADA or whether it's really these attorney mills "in disguise" posing as disabled rights groups. In either event, it hasn't happened.

 

[Ms_Butterfly]

Has anybody found reporting issues to do any good?

I've never had to report any business to the DOJ, but I have had to report two airlines to the DOT. One was very recent, so I haven't heard anything back, but the other one I got a good apology from the airline et al. I was very glad that I made the formal complaint. (It happened multiple times at multiple locations of the airline and grew worse each time, with the last one being really bad, so that is why I went through the DOT instead of the airline itself.)

If you have complained to the post office and they've done nothing, it is time to go to the next level. If they are an actual US Post Office, filing a complaint is different than with other businesses. If they're a Mailboxes Etc. type place, write to corporate (if there is one). Snow is an easy thing to fix, so hopefully they will get on that right away for you!!

Sounds like you need to talk with corporate at Wal-Mart and Toys'R'Us. If that gets you nowhere, file with the DOJ.

I know ppl who have talked with corporates and have had to file with the DOJ and have had good results.

 

[toocherie]

Has anybody found reporting issues to do any good? I find alot of accessible bathroom doors are oriented so that they open inward, unless the washroom is very large(near me Wal-Mart and Toys R Us) it means I can't use it, since their isn't enough room to go around the door in my wheel-chair to close it. I complained about this at several places and finally just started carrying screw drivers with me everywhere.

I was having problems with the post office too (Letters come to my door, but packages had to be picked up at a non-accessible pharmacy down-town). Several of the phone calls resulted in tears, I finally gave up and paid to rent a box in the next town over who promptly began plowing their snow three feet high on the ramp with the extra spilling over into the accessible parking spaces. They said they'd shovel it out but never did.

Have any of you guys have someone fix something, when you reported it

Ok, so this is where talking to the local people will do you no good. This is where you need to send a letter to the "powers that be"--for example if it's one of the two retailers you mentioned you need to write a letter to their legal departments pointing out the violation and how it can be fixed. The local people are most likely not empowered to make changes. It would have to come from corporate. (Both of the organizations you mentioned have web sites where you can get a corporate address, I'm sure.)

On the post office situation--I could be wrong but the ADA may exempt the post office as a federal agency? (did they go private?) not really sure Having said that, I know of one instance where the post office did change a ramp (without telling the property owner of course) and did not do it to ADA standards . . . . .

 

[Ms_Butterfly]

On the post office situation--I could be wrong but the ADA may exempt the post office as a federal agency? (did they go private?) not really sure Having said that, I know of one instance where the post office did change a ramp (without telling the property owner of course) and did not do it to ADA standards . . . . .

I'm not certain, but believe the U.S. Postal Service is under a different set of laws - but they do have laws for equal access and those need to be followed. I forget the name of the act they fall under (if it isn't the ADA).

 

[merryweather20]

I'm in Canada so the line of reporting and standards are different. I did work it up the ladder with the Post-Office. They started delivering it to a new outlet sometimes. While the second Post-Office was completely accessible it was also on an icy hill (a little more adventure than I needed when picking up my mail), they would often still send packages to the other place and every-time they misdirected a package I had to work it all the way up the ladder again. At at least one station I'd end up crying and screaming. One postal employee suggested I scoot in on my but to pick it up. It was all just very discouraging, much less stress to pay for the post office box.

The deal with the snow I still am working up the ladder. They did finally clean off one teeny corner of the ramp and I was able to squeeze/crunch by this week-end (3 weeks later), but the snow is still completely blocking 1/2 their accessible spots, and most of the ramp.

I really would never bother reporting the bathroom door stops to corporate, it would take any one with a screwdriver 30 seconds to turn around.

I'd like to just boycott the places, but then I'd have nowhere to go!

 

[pugdog]

If you ever have some time to read the ADA, Ok so you would need a few days, there is some interesting things in it.
One is that they ask you to first go and ask the violator to fix the problem. If that does not work then you are suppose go through arbitration. Only after failed arbitration is a lawsuit called for and allowed.
If you ever read the settlements on the ADA website most of them are settled by arbitration and not lawsuits.

 

[barkley]

There are times and places for lawsuits, but, IMO, not until after the business has been given the chance to make the correction after being notified of their mistake. There are other things you can do before suing, like sending a letter to the business, making a formal complaint with the DOJ (or DOT for air travel), etc.

Yes, there are some horrible ppl who make a living off pretending to be disabled, going into places with a measuring tape, and sending out form we're-suing-you letters to businesses who have even a portion of an inch off of some tiny thing that could be easily fixed if asked. There is one person in particular who is part of the SD community and he is a terrible person - at least one person has committed suicide because of him - and does exactly this. (I'm certain you have heard of him before. He also tries to tell ppl that he wrote the ADA and many state laws and such ... it is so pathetic and sad that somebody has to stoop so low just for attention [and money]!)

You have prob'ly heard talk of changes to the ADA, to make lawsuits not be able to be done until a grace period has been given to the business to fix something after a formal warning has been sent to them and whatnot. That would be a VERY good change!!

i don't know if it's the same person but there was an individual who was getting allot of press when we lived in california because he had a history of seeking out places in both california and nevada and peppering private buisness owners with lawsuits for perceived ada violations. many small bsns owners opted to make financial settlements in exchange for him dropping the suits (he was not aiming to make changes only to gain fianacial rewards) because it cost less than hiring an attny to defend themselves he would claim that he had experienced 'pain and suffering' due to not being able to access or fully utilize or access a buisnesses.

this person brought at least one suit in the town we lived in and it threw the place into terror-city officials became overly paranoid about enforcing the law even when it was an inappropriate circumstance. one church that operated a private school was unable to get permits for the new playground they wanted to install because the city insisted that because the church on acres of it's own land was located off of a public road a disabled person might opt to illegaly attempt to use it (it was going to be fenced in to prevent neighborhood children from using it as a liability issue anyway) and it therefore had to be made ada compliant.

 

[SueM in MN]

Has anybody found reporting issues to do any good? I find alot of accessible bathroom doors are oriented so that they open inward, unless the washroom is very large(near me Wal-Mart and Toys R Us) it means I can't use it, since their isn't enough room to go around the door in my wheel-chair to close it. I complained about this at several places and finally just started carrying screw drivers with me everywhere.

Sometimes the problem with those doors is that the door was installed incorrectly by someone who didn't know that it was NOT supposed to open in (after all, all the other doors open that way).
Sometimes, people have 'sprung' the door by trying to make it open in and have broken it so it doesn't open the right way.
That's a place where maybe it's best to make a manager come into the bathroom with you so you can demonstrate how it's supposed to work and that the way it is now doesn't work. Or taking pictures that show how it currently works and a copy of the information that shows how it is supposed to work.
In some of those cases, the complaint is probably looked at by someone who goes into the bathroom, doesn't understand what is wrong because it looks right to them.

this person brought at least one suit in the town we lived in and it threw the place into terror-city officials became overly paranoid about enforcing the law even when it was an inappropriate circumstance. one church that operated a private school was unable to get permits for the new playground they wanted to install because the city insisted that because the church on acres of it's own land was located off of a public road a disabled person might opt to illegaly attempt to use it (it was going to be fenced in to prevent neighborhood children from using it as a liability issue anyway) and it therefore had to be made ada compliant.

It's too early to do any checking of whether they have to make it compliant. but I would NOT agree it was inappropriate for that playground to be made ADA compliant. It's much easier to make something compliant while it is being built than to have to fix it later.
Even if they don't have to comply, they should comply.
They have no way of knowing if/when someone who would need an accessible playground would join the church (as we did when we moved to where we are now)
or when/if someone who is already a member of the church has a disabled child born to them (as happened to us)
or becomes disabled because of accident, illness or injury (as happened to one family I know whose child lost a leg due to illness and one child in my MIL's church who was injured in a car accident).
Then, there are also temporary situations where some child might temporarily need an accessible playground.
Even if they can't be forced to make it accessible, they should feel a moral obligation to make it accessible.

 

[dclfun]

I just want to give one example of something Disney did to solve a problem. I was checking into POR back when there was a pushplate vs. automatic doors. MY SD is the one who opens the doors by following her command to press the plate. Unfortunately the plate was behind a metal bench that was anchored to the ground. Another guest helped us but as I went into the building I mentioned to someone in costume about the fact that the pushplate was improperly placed- behind the bench and also too high ( I think it was mostly used by bell services and that was their best spot). By the time I got out of the check out line ( which really wasn't more than 20-30 min) and came back outside, the pushplate had been moved to the proper location and the other spot was painted over. Talk about amazed! So without really complaining and just making a comment about accessibility, someone agreed and fixed the problem pronto. As to other businesses, sometimes taking it to the DOJ is the best way to handle a situation. Other than California I don't think there is any personal monetary gain someone can make by suing under the ADA ( I could be wrong about this though). California also allows people who are "limited" vs. "substantially limited" to be covered, which means virtually anyone can claim coverage and protection under the ADA. I too have read about the man who has made a fortune suing and detest that person for making a mockery of the ADA's intentions. Yes, he and his lawyers may have caused some places who really needed to become more accessible to compy but I don't believe that was his real intent. He intended to make money.---Kathy

 

[WheeledTraveler]

I'm not sure if any of you guys are aware, but in 2000 there was an attempt at a bill that would require people to give 90 days notice before suing for ADA violations. It failed.

Honestly, I'm glad it failed. I give a lot of leeway to places that would be hard to renovate, but it's been over 15 years since the ADA was passed and part of the ADA stipulated that businesses which were not accessible needed to have plans for becoming so in a reasonable amount of time (with the normal rules about the cost of renovations not being allowed to cause undue hardship). Honestly, I'm not a big fan of the lawsuits that are obviously just to make money, but things like places that literally *only* need a short ramp that haven't put one in drive me nuts. I hear a lot of "we're putting one in next week" and it never happens. And any new public or commercial building that's been built in the last 15 years that isn't accessible deserves any lawsuit it gets, IMO.

And I'll admit that places like bathrooms get to me the most. Very few "accessible" stalls I've been in were anywhere near accessible by ADA standards. And as was pointed out on another board I use, ADA standards aren't perfect for everyone either.

For the record, I write letters of complaint and make phone calls and talk to managers, but it generally doesn't change anything in my experience. I don't care about an apology or money or anything. I just want stuff fixed! Also, for the record, I haven't ever sued anyone for anything, but I've certainly thought about it.

 

[toocherie]

I'm not sure if any of you guys are aware, but in 2000 there was an attempt at a bill that would require people to give 90 days notice before suing for ADA violations. It failed.

Honestly, I'm glad it failed. I give a lot of leeway to places that would be hard to renovate, but it's been over 15 years since the ADA was passed and part of the ADA stipulated that businesses which were not accessible needed to have plans for becoming so in a reasonable amount of time (with the normal rules about the cost of renovations not being allowed to cause undue hardship). Honestly, I'm not a big fan of the lawsuits that are obviously just to make money, but things like places that literally *only* need a short ramp that haven't put one in drive me nuts. I hear a lot of "we're putting one in next week" and it never happens. And any new public or commercial building that's been built in the last 15 years that isn't accessible deserves any lawsuit it gets, IMO.

And I'll admit that places like bathrooms get to me the most. Very few "accessible" stalls I've been in were anywhere near accessible by ADA standards. And as was pointed out on another board I use, ADA standards aren't perfect for everyone either.

For the record, I write letters of complaint and make phone calls and talk to managers, but it generally doesn't change anything in my experience. I don't care about an apology or money or anything. I just want stuff fixed! Also, for the record, I haven't ever sued anyone for anything, but I've certainly thought about it.

I'm not saying that you shouldn't be able to sue . . .. just that there is a "formal" notice procedure before the arbitration/lawsuit could be initiated. I'm sure there are those recalcitrant business owners out there who won't do something until forced to, but in many cases I believe the issue isn't purposeful non-compliance but not being aware that the property is out of compliance. In several cases I have experienced, even the city can't agree upon what "accessible" means--I remember one project in Salt Lake City where every time a new inspector came out the requirement changed--sometimes requiring more improvements . . . . then the next one would say--"oh no--you don't need to do that for ADA." Just as frustrating for the property owner sometimes, IMHO--and at least the ones I work with would be more than happy to be in compliance . . . . if they could figure out what "compliant" means! Different jurisdictions have different requirements.

And not to make light of the situation--but does ANYONE like those industrial strength toilet paper dispensers with the teeth on both ends and the huge roll of paper with no perforations? I am assuming--since I see them popping up in new construction--that this is what is ADA compliant--but in my experience they are placed too low for most people and the teeth rips the paper to shreds most times! I'd rather see an old fashioned holder (and place two if need be!) But that's me . . . . .

 

[Mickey'snewestfan]

I don't agree with this proposal at all! As a special ed teacher, I can tell you that if I take a group on a field trip and one of my students can't access the building, or use the bathroom, or enjoy the purpose of the trip, then knowing that things will be fixed in a month isn't much of a consolation. We had a school around here that had a non-compliant bathroom, and was expecting a child with CP to crawl into the stall -- I don't think that telling him that he only has to crawl for a few weeks is fair at all. If I were a wheelchair user and arrived at my dream vacation to find out I couldn't get to the bed or take a shower I don't think I'd be placated to know that things would be fixed for the next visitor.

In my opinion ADA isn't about building accessibilty for individuals, it's about ALL people being able to go somewhere and expect that they'll be able to function and participate without barriers. If it takes you a month or two to be able to access that neat new restaurant down the block, or take your child swimming in your new town then it's not in keeping with the spirit of the law.

What I would like to see is the law changed so that the individual sueing gets reasonable compensation, but the "punitive" piece of settlements goes into a fund that is used for grants to increase accessibility. So for example, if someone sues because a playground is built that doesn't comply with ADA (and at least as far as playgrounds there is no excuse, the ADA standards are very clear -- not great IMO, but defintely clear), then maybe a small amount of money goes to the family who brings the suit but the majority is put back into building playgrounds that go above and beyond and provide true accessibility.

 

[toocherie]

I don't agree with this proposal at all! As a special ed teacher, I can tell you that if I take a group on a field trip and one of my students can't access the building, or use the bathroom, or enjoy the purpose of the trip, then knowing that things will be fixed in a month isn't much of a consolation. We had a school around here that had a non-compliant bathroom, and was expecting a child with CP to crawl into the stall -- I don't think that telling him that he only has to crawl for a few weeks is fair at all. If I were a wheelchair user and arrived at my dream vacation to find out I couldn't get to the bed or take a shower I don't think I'd be placated to know that things would be fixed for the next visitor.

In my opinion ADA isn't about building accessibilty for individuals, it's about ALL people being able to go somewhere and expect that they'll be able to function and participate without barriers. If it takes you a month or two to be able to access that neat new restaurant down the block, or take your child swimming in your new town then it's not in keeping with the spirit of the law.

What I would like to see is the law changed so that the individual sueing gets reasonable compensation, but the "punitive" piece of settlements goes into a fund that is used for grants to increase accessibility. So for example, if someone sues because a playground is built that doesn't comply with ADA (and at least as far as playgrounds there is no excuse, the ADA standards are very clear -- not great IMO, but defintely clear), then maybe a small amount of money goes to the family who brings the suit but the majority is put back into building playgrounds that go above and beyond and provide true accessibility.

I certainly understand your frustration when this happens--however, I disagree that the standards are so "clear"--like the example I cited earlier where two different building inspectors had two different ideas of what it took to comply with the law. Is not the ultimate goal to achieve compliance? If a property is non-compliant at the time you visit you are not going to be able to get it fixed (in most cases) on the spot. In my experience, in many cases the owner is not aware of the violation. Would it not be better to give the owner the opportunity to fix the problem (even reduce the time period--make it very short)? In the cases I am talking about we are not talking glaring situations where there is no ramp or no attempt at a handicapped bathroom stall at all. We're talking about a ramp where the slope may be off by 1% or the situation noted above where whoever installed the door on the stall hung it the wrong way and it needs to be turned around.

Just my two cents--but I'd rather the property owners spend money on accessibility rather than paying a judgment.

 

[Mickey'snewestfan]

My reference to "clear" was specific to playgrounds where there are very detailed guidelines. It sounds like in your area in the building industry the guidelines may not be clear, or perhaps they aren't widely available, or people aren't taking the time to research them. If this is the case then perhaps you should focus on demanding clearer guidelines, or getting them publicized, rather than trying to change the law so that people don't have to follow it unless they get "caught".

In my experience, every person with a mobility or sensory related disability that I know can tell you stories about poor access, while very few people without disabilities can tell stories about being hurt by ADA. To change the law to make it LESS powerful seems like a move in the wrong direction.