Barriers still a burden

Anger over lawsuits has triggered drives for change, but it also can deflect attention from the obstacles the disabled still face

By Marjie Lundstrom and Sam Stanton – Bee Staff Writers

November 14, 2006 — Story appeared in MAIN NEWS section, Page A1

Frank Bacon of San Bernardino struggles to open the door of the office of state Sen. Nell Soto, D-Pomona, on Disability Capitol Action Day

Frank Bacon of San Bernardino struggles to open the door of the office of state Sen. Nell Soto, D-Pomona, on Disability Capitol Action Day in June. While the Americans With Disabilities Act has been law for 16 years, the disabled face challenges like these daily. Eventually, an onlooker helped Bacon get inside.

Darren Keepers had been up in the snow, fooling around with his high school buddies, when the threesome decided to pop into a Wienerschnitzel in Upland for dinner in March.

Blind since age 5, Darren was accompanied by his service dog, Lambert, a gentle black Lab who was properly harnessed and wearing a yellow sign cautioning, “DO NOT PET ME, I’M WORKING.”

These were not rowdy teens. Darren, 18, played drums in his high school band and — despite his blindness — became his school’s baseball announcer, once serving as a special guest announcer for the Los Angeles Angels. His friends were Explorer Scouts who had taken police training.

On this night, they were unwelcome guests. The manager ordered the boys to leave the restaurant. No dogs allowed, he said, rejecting the boys’ explanations and written proof of Darren’s rights. Twice the youths were thrown out, despite their efforts to explain the law and Lambert’s purpose.

And then the crowning touch: Six days later, after Darren’s father had complained to corporate officials, the Rancho Cucamonga family received a three-paragraph letter from a company vice president, apologizing for “not meeting your expectations.” Tucked inside was a coupon for a free hot dog, medium soft drink and fries.

Darren Keepers’ allegations go to the heart of the 16-year-old Americans With Disabilities Act, graphically illustrating how many barriers and biases remain.

Yet the perception that all ADA filings are nuisance suits has obscured that reality, polarizing the disabled and business communities in an emotional standoff over justice and fairness. The passions have spilled into the California Legislature, where repeated Republican efforts to tinker with the laws and help businesses avoid costly lawsuits have been defeated by disabled rights advocates and their legislative champions.

Some Seek Sweeping Change

Unlike some disabled plaintiffs, Darren Keepers isn’t looking to sue all his neighbors or collect a series of handsome settlements. But he and his parents do want to force change.

And for now, a lawsuit is a proven tool.

“I think Martin Luther King had more than one or two places that he complained about down in the South in terms of segregation,” said Paul Rein, the Oakland access attorney who filed a suit this year against Wienerschnitzel on Darren’s behalf.

“There’s never been, in the past, a limitation on how many places an activist can sue.”

Rein acknowledges the negative reaction many have to multiple lawsuits filed by a few attorneys, which he concedes do “look bad.” He filed a comparatively modest 18 access suits last year, stressing that he does not focus on mom-and-pop businesses but looks instead for litigation that has “the most impact on public usage.”

Such high-impact cases have brought sweeping changes in California and other states.

In August, the nonprofit Disability Rights Advocates of Berkeley filed a federal class-action lawsuit against the state Department of Transportation, charging that sidewalks and pedestrian paths along some state highways were hazardous to the disabled. DRA Executive Director Larry Paradis, who is in a wheelchair because of a bone disease, characterized his group’s efforts as “hard-hitting, impact litigation.”

“The big thing we want people to understand is that in most ADA cases out there, there have been efforts to resolve (the matter) before filing a lawsuit,” Paradis said. “A few lawyers cause an awful lot of strife over lawsuits dealing with mom-and-pop shops.”

A month before Paradis’ group sued Caltrans, a federal judge in Denver approved the nation’s largest ADA settlement to date involving all Kmart stores nationwide, including more than 100 in California. The case started in the parking lot of a Denver-area Kmart in 1999, when Carrie Ann Lucas, a disabled shopper, discovered there were not enough disabled parking spaces.

Lucas wrote to Kmart managers alerting them to the problem, recalled her attorney, Amy Robertson. Lucas, the lawyer said, never received a reply.

The disabled woman first sought a solution from the U.S. Department of Justice. After more than a year she sought out Robertson, whose law firm sued seeking fixes at five Denver-area stores. Robertson said that suit probably would have cost Kmart $10,000 at the time, but Kmart refused to settle and within a year Robertson had sought class-action status for the case.

In July, a federal judge approved Kmart’s agreement to repair problems at more than 1,400 stores nationwide and pay $13 million in damages to disabled customers, $8 million in cash and $5 million in gift cards. Nearly all of that money — $12 million — will go to customers in California because of the state’s laws allowing damages for ADA plaintiffs. Kmart also agreed to pay $3.25 million to the attorneys in the case.

Attorney General Gets Involved

In California, improving access through lawsuits has almost exclusively been the work of private attorneys with a notable exception: Last year, Attorney General Bill Lockyer sued Santa Cruz and Kern counties after investigators found numerous violations of the ADA at polling places. In Santa Cruz County, for instance, 75 percent of the polling places surveyed had barriers, ranging from unhelpful poll workers to steep ramps outside and blocked pathways inside, Lockyer’s office said. In Kern County, 90 percent had barriers.

Statewide, private lawsuits have opened access to historic courthouses and schools and universities, both public and private.

Until Oakland attorney Rein sued Stanford University in 2004, disabled football fans needing a restroom at the old 85,500-seat Stanford Stadium were reduced to “using the bushes,” as his client — a 30-year season ticket holder — had done, the attorney said. The university’s totally remodeled stadium opened this year.

Rein, 62, believes he is the longest-practicing disabled access attorney in the nation, having begun the work 30 years ago — not long after California led the country by adopting its own access laws in 1968 and 1970.

In a settlement reached this year, one of Rein’s clients, Christina Adams, received $20,000 in damages because she could not enter the Rosicrucian Egyptian Museum in San Jose last year with her husband and three children. The entrance was blocked by 10 steps with no ramps or elevators; the planetarium was blocked by four stairs. Had she gotten in, the quadriplegic woman — who uses a chin-controlled wheelchair because of her multiple sclerosis — would have found stairs between her and all the exhibits and restrooms.

The defendants agreed to make their entire museum accessible by the end of 2009, an outcome Rein characterized as admirable.

The Oakland attorney was less successful in 2000, when he helped represent the disabled Alameda woman who sued actor Clint Eastwood for access violations at his Mission Ranch resort in Carmel. The woman, who has muscular dystrophy and uses a wheelchair, claimed that the hotel office had no ramp, bathrooms were inaccessible and lacked signage, parking was not properly marked and the hotel didn’t have enough accessible rooms.

Furious about the suit, Eastwood testified before Congress about ADA abuse and complained bitterly about greedy lawyers and plaintiffs. Amid a swirl of publicity, the jury ultimately concluded there were problems with the actor’s property, which he said he was already fixing. But the jury awarded no damages to the plaintiff, saying they didn’t believe she actually tried to use the facilities and thus wasn’t denied access.

The judge also refused to award $500,000 in attorney’s fees to Rein and the woman’s other attorneys, which Eastwood trumpeted as a victory for himself and all business owners.

Changes Stall In Legislature

Following the rancorous Eastwood case, California saw a surge of legislation aimed at reining in the lawsuits.

Republican Assemblyman Tim Leslie of Tahoe City, who leaves office this year under term limits, has proposed several measures over the years to help businesses cope with ADA requirements and lawsuits. None was successful.

In 2003, he encountered furious opposition over AB 209, which would have given small businesses notified of access violations 60 days to fix them before they could be sued.

The measure died in the Assembly Judiciary Committee, where disabled Californians — many in wheelchairs — lined up to give emotional testimony about their frustration with persistent obstacles. The idea of notification is despised by many disabled Americans, who believe it gives an unwarranted grace period to scofflaw businesses.

“Requiring the disabled community to give ‘notice’ will only ensure that tens of thousands of businesses remain inaccessible for decades to come,” Amy B. Vandeveld of San Diego, one of the state’s busiest ADA attorneys, wrote in an e-mail response to The Bee.

After again proposing, and withdrawing, a notification bill in 2004, Leslie came back in 2005 with AB 20, which would have removed the incentive for some lawsuits by not allowing plaintiffs to collect damages for technical violations in which no one was denied access. Again, Leslie pulled back the measure.

The more controversial bill that year came from Republican Sen. Chuck Poochigian of Fresno, who revisited the notification theme by proposing in SB 855 that businesses be told of access violations and given time to fix them. Vigorously opposed again, that bill died in the Senate Judiciary Committee.

Business groups, including the California Restaurant Association and California Building Industry Association, also have sought relief. Through a group called Californians to Stop Shakedown Lawsuits, the coalition began pressing an initiative for last week’s ballot that would have established a right-to-fix period before a lawsuit could be filed.

But the groups pulled back the initiative in February after receiving assurances that legislative leaders would tackle the matter. Business and legal groups have met, but have yet to forward a proposal.

Nationally, similar notification efforts in Congress also have fizzled.

Finding compromise between the two sides has been virtually impossible in California, Leslie said. Instead, he said, he found himself under attack by a small group of disabled advocates who he believes have effectively hijacked the overall disabled community’s interests.

“Their concern about protecting what they’ve achieved is so strong they’re able to frighten (others) into opposing even any discussions about the issues,” Leslie said.

Advocates for the disabled say there is nothing radical about their response to efforts to limit access now guaranteed by law.

“There are hundreds of thousands of businesses in California,” Vandeveld said in her e-mail. “And yet, in the past 16 years, people with disabilities have been able to reach only a fraction of them, either informally or by way of a lawsuit.”

In January, Vandeveld joined disabled rights activists opposing the “Opportunity to Repair Act” ballot initiative, allowing businesses time to fix violations.

The opponents staged a street-theater protest at the California Building Industry Association offices in Sacramento. Participants depicting the “villainous” CBIA and California Restaurant Association wore black hats, capes and moustaches and wielded plastic bats, pretending to beat demonstrators in wheelchairs.

“Nobody wants to come out against the disabled, or be perceived as being against the disabled,” said Kim Blackseth, a disabled access consultant from Oakland who is quadriplegic and uses a motorized wheelchair.

“It’s like being soft on crime — not a real good long-term career move for a politician.”

Blackseth, appointed this year to the California Building Standards Commission by Gov. Arnold Schwarzenegger, has tried to help legislators craft reforms, upsetting many in the disabled community. But he has held his ground in questioning the current approach, which he believes has not only led to more access in California but also to more hostility.

“I think it’s time we as a society looked at this and said, ‘Is this the way we want to pursue access? Are lawsuits by individuals the most efficient way? Is it the best way to build a bridge between the disabled community and the business community — to have them as pitched opponents?'” Blackseth asked. “I don’t think that it is.”

Tony Coelho, a former California congressman and the principal architect of the ADA, disagrees. Coehlo said that the ADA — like civil rights legislation — was designed to have individuals be its main force in ensuring compliance.

“The ADA was put in to guarantee the civil rights of those of us with disabilities, just like in the 1960s legislation was put in to protect the rights of people of color,” said Coelho, a Democrat from the San Joaquin Valley who has epilepsy.

Lack of access leaves scars

There is little question that some California businesses ignore or even flout access laws. Interviews with dozens of disabled Californians reveal tale after tale of embarrassing and insulting treatment as they tried to patronize businesses that had done little or nothing to provide access.

Dina Garcia, a 32-year-old Chatsworth woman who uses a wheelchair, recounted how she tried to visit a Spanish restaurant in West Los Angeles and was greeted by flights of stairs.

“I told the owner, ‘You might want to make this accessible,'” she said. “And he said, ‘We can pick you up in your chair and carry you in.'”

Even the most basic aspects of daily living that many take for granted — sidewalks, for instance — can be formidable challenges for the disabled.

The recent suit against Caltrans, brought on behalf of Californians for Disability Rights and the California Council of the Blind, identifies a series of dangerous sidewalk stretches along the Pacific Coast Highway in Long Beach and two major thoroughfares in Berkeley, San Pablo and Ashby avenues, among others. Statewide, maintenance is so poor and obstacles so big that disabled citizens have been forced into traffic or have tipped over in their wheelchairs, the suit charges.

A visit to a three-block stretch of the Pacific Coast Highway in Long Beach illustrates the magnitude of the problem.

Stephanie Bussi, 66, a disabled woman who uses a motorized scooter, could maneuver only a half-block from the intersection of PCH and Long Beach Boulevard before encountering a light pole in her path. The hazards continued along the urban stretch, dotted with fast-food restaurants and auto repair shops: a sidewalk that widens, then dangerously narrows; a steep curb cut; an alley curb with a 4-inch drop.

“I’ve seen people in manual chairs going down into the street because they can’t negotiate the sidewalks,” said Bussi, secretary of Californians for Disability Rights, the state’s oldest and largest disability rights group.

Other obstacles are more personal

Disabled citizens tell of humiliating accidents in public when restrooms aren’t accessible. Christina Adams, Rein’s client who couldn’t enter the Egyptian museum, wet her pants while she sat in a busy area of San Jose for two hours awaiting her family, according to her suit.

Adams had worked with Rein years earlier in a lawsuit against Carnival Cruise Lines, which had advertised the many “accessible” cabins aboard its Holiday cruise ship. Adams boarded the ship with her family, only to find that none of the ship’s cabins was fully accessible — nor were the public restrooms, Rein said. For three days, her husband had to lift her from her wheelchair and carry her into the bathroom.

The court eventually ruled in Adams’ favor, and U.S. District Court Judge Thelton Henderson of San Francisco was especially supportive of her and of other disabled plaintiffs who bring lawsuits to improve disabled access.

In 2000, Henderson wrote that ADA plaintiffs were acting in the public interest and that successful lawsuits benefited not only the disabled but “the entire society at large.”

“(T)he enforcement of civil rights statutes by plaintiffs as private attorneys general is an important part of the underlying policy behind the law,” Henderson wrote. “Such a policy ensures an incentive for … plaintiffs who can ill afford to litigate their claims against defendants with more resources …”

Amy Robertson, the private attorney in the landmark Kmart case, said she believes “there are far and away too few lawsuits.”

“There’s been a very funny piece of hypocrisy going on in the business community,” she said. “They get a summons and complaint and they whine to the press that it’s ambush litigation. Then when the lawyers write first (before suing) and list all your problems they go scream to the press that it’s extortion, it’s a threat.

“Clearly, the only thing the businesses really want is they want the lawyers and people with disabilities to go away and let them violate the law.”

Judges Split On Law’s Intent

In the state’s federal courts, the judges at the forefront of deciding ADA cases have been split on the issue. One federal judge in Los Angeles ruled that frequent plaintiff Jarek Molski was out of bounds for filing too many suits and needed permission to file any more.

Another ruled that one of the most frequent filers — Ron Wilson of Dixon, who used Chico lawyer Lynn Hubbard III — had every right to sue as often as he does, even in boilerplate language. Since the violations are so similar, the judge reasoned, why not the suits?

Last month, in a ruling that stunned many, an appeals court in Los Angeles found that an access case involving relatively minor violations — a lack of insulation under a fast-food restaurant’s sink, and a mirror that was too high — were unintentional, and did not justify the payment of damages under the state’s Unruh Act. The long-range effect of the ruling is unclear.

U.S. District Court Senior Judge William B. Shubb believes that Congress may have to clarify whether the system has evolved as intended.

“I really think we need some guidance from Congress if this is how they intended the enforcement of this act,” Shubb said in an interview at the federal courthouse in Sacramento.

San Diego attorney David Warren Peters of Lawyers Against Lawsuit Abuse said he believes widespread public education about the ADA also could help. The United Kingdom, for instance, launched a media campaign to advise businesses about disabled access laws, positioning posters at bus stops throughout London, he said.

Disabled rights advocates are skeptical, having seen up close the business community’s reaction to such efforts.

Chris Jones, executive director of the Tri-City Independent Living Center in Eureka, said her agency tried to offer workshops last spring to help businesses learn how to become compliant.

“We canceled them because of lack of interest,” she said.

Much of the apathy seemed to stem from business owners’ fear that participation would tip off area lawyers they were not in compliance and get them sued, she said.

It’s a common complaint. Herb Levine, executive director of the Independent Living Resource Center of San Francisco, said his agency got a $25,000 grant for a program to offer free and confidential assessments of businesses to tell them what they needed to do. About 1,500 businesses were contacted.

Only three said yes.

For those who do file ADA lawsuits, the decision does not always come easily.

Darren Keepers’ parents struggled with what to do when their blind son was ejected from the restaurant over his service animal — a dog that had been welcomed in hotels and on beaches, at the Hollywood Bowl and at Staples Center, at Pike Place Market in Seattle and on the ferry.

But not at the Wienerschnitzel in Upland.

“We’re not sue-happy people,” said Darren’s mother, Lisa Keepers.

The family eventually got Oakland attorney Rein’s name from a business acquaintance of Darren’s father, and the suit is pending. In court papers, Wienerschnitzel officials “emphatically deny plaintiff’s allegations,” saying that the restaurant “had a policy in place, consistent with the ADA, to prohibit unlawful discrimination and defendants acted consistently with that policy.”

However, in an Upland police report on the incident, the manager admitted he was “unaware of the rules and/or law and that he told both parties that he was sorry.”

Darren now attends junior college near his home and plays drums in the school’s jazz band. “I’m not out just for some easy cash,” he said. “I want more awareness.”

“That,” adds his mother, “and respect, too. That is honestly what gets me.”

About the writer:

The Bee’s Marjie Lundstrom can be reached at mlundstrom@sacbee.com or (916) 321-1055. The Bee’s Sam Stanton can be reached at sstanton@sacbee.com or (916) 321-1091.