Tag Archives: disability rights

The ramps of Route 1

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[Cross-posted at CREECblog.]

Every summer or so, we visit my brother and his family at their place in Maine.  To do this, we generally fly into Boston and then drive the four hours from Logan to mid-coast Maine.  The first three hours are on I-95; the last hour or so on Route 1 from Brunswick to Thomaston.  It has long struck me, as we meander up the barely two-lane road — often at 30 mph behind a giant RV or tractor — the amazing number of very small businesses that have ramps.

This past weekend I made the trip with no deadline and no one else in the car, so I had the time* to take some photos of these examples of readily-achievableness. (Ready achievability?)**

Disclaimer, because every now and again some defense-side attorney (hi, guys!) may read this:  I did not evaluate these ramps for compliance with the Standards.  I don’t know their dimensions or slope.  If you try to introduce this as evidence in one of my cases, I will file a Motion for Judicial Notice of Completely Missing the Point.

The first couple were actually near Manchester, NH, where I had taken a detour to visit a college classmate.

Small free-standing store with parking lot. Store has steps in front and a ramp up the side starting from the back of the store and rising to the middle of the right hand side.
These next two are churches, which aren’t even covered by the ADA (unless they have some sort of commercial business on the side):

Front view of white building with three steps at the front entrance (in the middle of the front of the building) and a ramp extending from the entrance along the front to the left side of the building. Ramp has a sign that reads, "Christ Died for Our Sins."

 

Photo of beige church building with the words "Saint Peter" on the front and a ramp curving around to the right side of the building.

 

Onward to Rte 1:

One story building with front porch accessible by a short ramp in front of the building.

This actually might have been someone’s house.  Along Route 1, the distinction between house and business is often sort of vague.

Gabled grey house with wooden ramp extending from the front door and curling around to the right in the front yard. The base of the ramp is white lattice work and flowers grow along the front of the base.

Just north of Wiscasset.

Small free-standing red building with a ramp extending from the middle of the front off to the right.

Jean Kigel Studio, Damariscotta.

One-story building viewed from the side where a ramp provides access up onto the porch.

Cheap cigarettes in Waldoboro.

One-store store with a sign in the front reading "Cheap Cigarettes." The front door is served by a short apparently level ramp with a slighly sloped portion at the end.

Somewhere south of Thomaston.

House or business with approximately five steps to the front door and a ramp to a side door on the left.

The Hair Loft, Warren, Maine.

One-story building with a sign reading "Hair Loft." The front entrance is on the left side of the photo, served by approximately six steps. The door is also served by a ramp from the door leading to the right of the photo.

Unidentified business, Warren:

Front of a two-story house or business with a wide metal ramp leading to the front entrance.

The famous Moody’s Diner, Waldoboro:

White building with neon sign reading "Moody's Diner" on the roof. A ramp is positioned along the left side of the building leading up to the entrance in the middle.

Ralph’s Homes, Waldoboro:

Freestanding white building with a long switch-back ramp serving the front entrance, which is up approximately six steps.

Random business south of Waldoboro:

Red building with approximately 3 steps to a porch serving the front entrance. A ramp serves the porch as well.

The Nobleboro Antique Exchange:

Blue two-story building with a switch back ramp serving the porch and front entrance. Sign in front of the building reads "Nobleboro Antique Exchange."

So next time you hear some fancy store or chain claim that it’s not readily achievable to ramp their business, here are some examples to, in legal terminology, call baloney.***

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* My leisurely pace turned out to have been a good plan for another reason:  when I got to my brother’s house, he and his family were out and their house was guarded by their snarling goldendoodle.  Seriously.  This dog

Benign-looking light brown dog, sized somewhere between a poodle and a golden retriever, with a multicolored color, sitting on a lawn looking to the right of the photo.

exiled me to the hammock until my hosts returned to chaperone my canine interaction.

I was not suffering:

Legs and feet of photographer on hammock, sunny Maine seascape in the background.

 

** Under the ADA, buildings built after January 26, 1993 were required to be accessible.  42 U.S.C. § 12183(a).  Those built before that date and not altered since must remove barriers — by, for example, ramping entrances that are only accessible by steps — where it is “readily achievable” to do so.  42 U.S.C. § 12182(b)(2)(A)(iv).

*** I might have used a different word if not for the cross-posting, but I’m trying to keep it clean on CREECblog.

Prior litigation: admissible; evidence of life with a disability: inadmissible.

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[Cross posted at FoxRobBlog, which is involved in some sort of DNS attack.  Whatever that is.]

In Yates v. Sweet Potato Enterprises, Inc., 2013 WL 3662645 (N.D. Cal. July 12, 2013), the plaintiff — a guy who uses a wheelchair — alleges that he encountered barriers at a Popeyes restaurant.  In the order, the judge addresses questions from both the plaintiff and the defendant about what evidence can be used at trial.  In so doing, she does two things that are stunning individually, but that — taken together — turn the plaintiff into the defendant, defending his right to equal access to the businesses that non-disabled people patronize everyday without a second thought.

First, the court grants the defendant’s motion to exclude “sympathy-inducing evidence regarding Plaintiff’s disability” that is not directly relevant to his experience at Popeyes, including “testimony regarding his day-to-day hardships.” The court just doesn’t see how that’s relevant.

Second, the court denies the plaintiff’s motion to exclude evidence that he has filed a large number of other access lawsuits.

Pause.

If people who use wheelchairs filed a lawsuit challenging every illegal barrier they encountered each day, most would file — I’m guessing — five to ten lawsuits each day.  Instead, most people go about their days, swearing at the illegal and thoughtless barriers, but without the time or resources to file those tens and eventually hundreds of lawsuits.  A brave and energetic few take the time to bring the lawsuits that remain necessary — twenty years after the effective date of the ADA’s architectural provisions and thirty years after California’s — to achieve a modicum of compliance.  For their trouble, these people are dubbed — in the press and in court — “serial litigators.”

The Ninth Circuit — the court with appellate authority over the Yates court — has recognized the role of these brave and energetic people in enforcing the law:

Courts must tread carefully before construing a Disability Act plaintiff’s history of litigation against him. As we have noted more than once, “[f]or the [Disabilities Act] to yield its promise of equal access for the disabled, it may indeed be necessary and desirable for committed individuals to bring serial litigation advancing the time when public accommodations will be compliant with the [Disabilities Act].” We must therefore be “particularly cautious” regarding “credibility determinations that rely on a plaintiff’s past [Disabilities Act] litigation.”

Antoninetti v. Chipotle Mexican Grill, Inc., 643 F.3d 1165, 1175 (9th Cir. 2010) (internal cites omitted; emphasis — though not nearly enough — added).   One of the cites I pulled out to make that quote more readable was Sam Bagenstos’s excellent article The Perversity of Limited Civil Rights Remedies: The Case of “Abusive” ADA Litigation, 54 UCLA L.Rev. 1 (2006).

So despite the fact that the Ninth Circuit has instructed courts to be particularly cautious about credibility determinations relying on past litigation, the Yates judge — without citing Antoninetti — holds that

Plaintiff’s  filing  of  well  over  a  hundred  disability  lawsuits  in  which  he  alleges  identical injuries bears directly upon his credibility.  . . . Plaintiff’s  alleged  scheme  to  generate  income  through  the  serial  filing  of  lawsuits  in  an  effort  to  extract  settlements  from businesses, may, in fact, be probative of his credibility.

More than simply disregarding controlling precedent, this decision has the very immediate and apparently intended effect of converting Mr. Yates from a real, live person who navigates his day to day world  in a wheelchair to a greedy serial litigant, judged on the fact that he has filed other complaints, the legitimacy of which he will likely not be able to prove before the jury.  (This question is not addressed in the decision, but my strong guess is that the defendant will be allowed to show the fact of hundreds of lawsuits, while the plaintiff will not be permitted to show that, in each one, the facility in question was indeed out of compliance.  That would, in essence, require hundreds of mini-trials within this single trial.)

On another level — about which I’ll write more later, as I have to get back to the other outrages on my desk — this is part of the broader scheme on the part of the business world to spin the fact that — 20-30 years after the federal and state standards took effect — there is still massive noncompliance.  When you’re really really wrong, accuse the other guy of “serial litigation” to correct your many many failures.

El Diablo closed. Donate to CCDC. QED.

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This may be the strangest charitable donation request you’ve ever gotten.  I’m asking you to donate to the Colorado Cross-Disability Coalition because the El Diablo restaurant closed.*

photo(65).JPG

Huh?

CCDC’s legal team of Kevin Williams and Andrew Montoya represented CCDC and several Mexican food enthusiasts who use wheelchairs in challenging the fact that the owners of El Diablo took an accessible space — in, btw, a beautiful old building in a booming neighborhood — and turned it into a largely inaccessible restaurant by adding raised areas that were not originally there.

Two years, summary judgment for plaintiffs, and a couple hundred thousand in legal fees later — just at the point where the judge was about to order El Diablo to restore accessibility — the city shut it down for (unrelated) code violations.  It reopened, reshut, reopened, reshut, declared bankruptcy, reopened, and — after the latest violation notice from the city — closed for good.

Bottom line:  CCDC spent a lot of attorney time on this case, won the case on summary judgment, and will not see a dime in attorneys’ fees.  Please join us in contributing to CCDC.**

If you’ve heard enough, just click on through to the donation page and send them some cash.  If you want to know more about this case, here are some links:

  • More snarky commentary about the defense counsel’s accusation that alleging discrimination when an accessible space is rendered inaccessible constitutes defamation.

This part of the ADA — requiring businesses to be accessible — has no damages remedy.  The only way lawyers can bring these cases is because the ADA makes defendants pay the plaintiffs’ attorneys’ fees when they lose.  But lawyers like the great team at CCDC always work under the threat that they’ll spend years on a case — and achieve excellent legal results — only to have it disappear.  That happened here.

Please support CCDC’s excellent legal work.  Thanks!

**********

* This photo is actually from January, but it’s more dramatic than anything I could find for the Final Shut Down.

** If you’re not comfortable with the online donation site — which seems highly unlikely if you’re reading a cutting edge blog like this one! — you can send a check to CCDC at 655 Broadway, Suite 775, Denver, Colorado 80203.

[Baloney] ADA Defenses

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In my non-lawyer life, I’m a bit of a smartass, especially in the presence of what I’ll politely refer to as [baloney]. I’ve been unsuccessful at completely eliminating this tendency from my professional life — I once smirked so aggressively at an opposing counsel’s, um, inaccuracy that the judge asked me whether I was having a facial spasm — but, given its public nature, I’ve tried to limit case-specific smartassery on the blog. I’ve also been working on my in-court poker face.

But it’s hard to completely eliminate blogsnark, chiefly because we run up against so many defenses in our cases that are sheer, unmitigated [baloney]. Here’s one. And what’s special about this one is that events of the defendant’s own creation gave us a rare glimpse of just how full of [baloney] it was.

When we first moved into our current office, we were thrilled to learn that the empty corner space across the street would soon be occupied by what we anticipated would be an excellent Mexican restaurant.  Our office neighborhood is sort of mixed, by which I mean — as we point out on the main website — we are close to excellent restaurants, an independent movie theater, and a bondage and domination shop. And a couple of gay nightclubs, vintage bookstores, and a knitting shop. I really, really love our neighborhood.  A high-quality Mexican joint would be a great addition.

Anyway, the space across the street was completely gutted, but one day as we strolled past — you have to stroll at least once per work day if you have office dogs — we noticed that they were installing raised areas in the space. We chatted with the highest-ranking person we could find on site, and explained that this was not permitted under the ADA. Apparently didn’t matter: the El Diablo restaurant opened with most of its seating on inaccessible raised platforms, and a couple of — also inaccessible — high tables at grade.

003-Montalbano_thumb

Before renovation: flat; accessible.

 

P000276-long-shot-north-raised_thumb

After renovation: raised; inaccessible.

We called. We wrote. More accurately, Tim did both, trying to explain that we were really psyched about the restaurant, but not the lack of access. To no avail. So Tim did something he doesn’t usually do: became a plaintiff. Represented by our awesome colleagues at the Colorado Cross-Disability Coalition, and joined by several other would-be restaurant patrons who use wheelchairs, Tim filed suit alleging that El Diablo* was in violation of the alterations provisions of the ADA.

Drama ensued.** But through CCDC’s excellent legal work, Judge Matsch granted Plaintiff’s’ motion for summary judgment. Plaintiffs then requested an injunction requiring El Diablo to provide access to the raised areas, which it opposed on the grounds that that would be a hardship, a defense that was not actually legally available, given that the owners had created the problem by installing the raised areas in the first place.

The Court rejected the whining hardship defense and granted the injunction, with some pretty powerful words on discrimination:

The injury to the plaintiffs and those persons represented by the Colorado Cross-Disability Coalition is that when they patronize this restaurant, they must suffer the indignity of discriminatory treatment by their exclusion from 840 square feet of the dining area solely because they use wheelchairs. The elimination of that discriminatory treatment goes to the very purpose of the ADA and it can only be remedied by requiring such modification to those areas as to make them accessible to wheelchairs.

More drama ensued, as it turned out*** that the owners had received funding from the City of Denver, promised to bring the premises into compliance with a variety of applicable codes, and then [apparently] [allegedly] didn’t. So the City shut down El Diablo and Sketch, the bar next door, for code violations. Even more drama ensued, this time between El Diablo and the City, culminating with the owner filing for bankruptcy.

When a company files for bankruptcy, it has to tell the court and the public who its major creditors are. A review of the owner’s public (did I mention public?) bankruptcy filing revealed this, from the folks who complained that it would be a hardship to provide access to the raised areas they created when they renovated the restaurant.

Page-from-2012-12-14-1-Voluntary-Pet

The defendant, while complaining about hardship and refusing to consider installing a ramp — or even spending the money to hire an architect to analyze the feasibility of a ramp — owed the attorneys on that very case $318,455.53. We can probably assume that the defendant had been paying those lawyers for at least part of the case before it stopped paying them, so this over-$300,000 debt is likely only part of the legal fees the owner had decided to spend to fight against what would almost certainly be a far less expensive solution, one that would integrate people who use wheelchairs into the restaurant.

And of course, think how cheap it would have been to comply with the ADA in the first place!

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*Yes, we were suing The Devil. Many of you plaintiffs’ lawyers probably often *think* your opponent is The Devil, but ours actually was.

**I’ve previously blogged about one of the dramas: the defendant’s accusation that CCDC was defaming them by posting publicly-available legal pleadings on its website.

*** Please pay attention, journalism students, to the way it should be done. The Westword article at the link contains these gems of impartiality:

Danger. That’s the sign on the door of Sketch, which is supposed to host an opening for a showing of 9News reporter Kirk Montgomery’s photographs tonight.

and this, by the column’s author, a lion in the field of journalism here in Denver:

A few hours ago, I was sitting in [the owner’s] office on the second floor, which didn’t seem to pose any immediate hazard to me … except that [he] was about to blow his top.

“Sh*t people say” jumps the shark.

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Shit people say to spouses of people who use wheelchairs:

My favorite “I”m so sorry” experience was in my first trial as a young lawyer, when Tim — who was an associate at the same fancy-pants DC law firm that I was — came to watch.  On a break, our loathsome opposing counsel came up to me and said, out of the blue, “I’m so sorry.”  Given the quantity of serious litigation bullshit he had engaged in, I was glad he saw fit to apologize, but thought it was better directed to the senior partner.  I was starting to say something about that when he added, “about your husband…”  Honestly, I still didn’t understand:  Tim wasn’t assigned to the case; what could this dude possibly mean?  He had to stumble on to say something about “injury” and “wheelchair” before it finally dawned on me.  Needless to say, I was speechless.

Years later, I actually wrote and submitted a “Modern Love” column to the New York Times after some lady walked up to us at a baseball game and said something about me being a good caretaker.  How can you explain in a sentence how ordinary life is?  How care is given and taken in equal measure?  Unfortunately, my column couldn’t compete with other important dispatches from the front lines of human relationships, for example, looking for a date on Craigslist or overthinking your boyfriend’s slippers.

That’s the great thing about the blog:  the only thing standing between my thoughts and publication is my own good judgment.  Such as it is.

Stopping to appreciate

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I was just about to post a cranky post about opposing counsel in a case we’re involved in* and my last two Facebook posts have been

This is where we are on our Big Case: witness has to go back to doctor for urgent tests and possible exploratory surgery for cancer; Defendant refuses to withdraw the subpoena for her deposition at the same time as the medical appointment.

Mamas don’t let your babies grow up to be lawyers.

and

File under “K” for karma’s a bitch. Opposing counsel who refused to reschedule a deposition for the witness’s medical procedure now needs us to reschedule for *his* medical procedure. Must.Control.Sarcastic.Response.

so it hasn’t been a good week for Rule 1.5.  But before I launch into my latest diatribe, I wanted to link to this, a wonderful meditation** by my friend and co-counsel Kevin Williams on how lucky we are to practice in the field we do.

As many of you know, CCDC’s offices are like many non-profit’s, but from my office, I can see the Colorado Rockies South and West.  From Pike’s Peak…almost…(if you stretch)… to Long’s.  This evening, as I wrap up today’s work (responding to letters from some lawyer telling me why he thinks I’m an a**hole), I was lucky enough to remember to turn around from my desk and look out my window.  I just watched the magnificence of another spectacular Colorado sunset.

…

The sunsets keep coming.  Fifteen years of being a disability rights lawyer has taught me one undeniable principle: When you represent people who have a righteous cause, you are doing the right thing.  Although we have had a few let-downs over the years, and many, many contentious battles, the victories keep coming. I look forward to tomorrow’s sunset.

We are lucky.  I’ll be ranting again soon — tomorrow, even — about the antics of our opposing counsel, but for tonight I’m thankful to practice in the field that I do, with a partner like Tim, co-counsel like Kevin and the rest of our incredible and various teams, and righteous clients, cases, and issues.  And much as I love our coastal colleagues, with the amazing view of the sun setting over the Rockies.

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*Coming soon.

**I think Kevin will hate this word.  I think he’d prefer something more like gin-fueled philosophizing.

Stupid Lawyer Tricks: ADA Defense Stupidity

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An animated response to all the invective-filled, garment-rending articles about lawsuits against businesses that violate the ADA.  As with my earlier attempt, I think I succeeded only in cracking myself up.   Call it Animation Therapy.   Try it:  http://www.xtranormal.com

Couple of notes.  I love how the animated gestures are almost as awkward as the gestures I generate naturally.  On the other hand, I’m very disappointed that I could not make the automated voice render the word “law-nerd.”  This is a significant gap in the Xtranormal program.  And because I can overthink anything, I feel a tiny bit odd that my alter ego is African-American.  (Of COURSE she’s my alter-ego.  What did you think?)  Felt odd as in “in a post about civil rights what right do I have to speak from an African-American perspective?”  Truth is, of the characters available from Xtranormal in this set, I identified strongly with the obviously coffee-related superpower and did not think a minor difference in skin color should stop me.  In addition, my Caucasian choices were rather limited.  This one was not alter enough of an alter-ego:

This one perhaps TOO alter:

We’ve previously established that I’m no superhero in the kitchen.

And I basically didn’t know wtf this was:

So Super Coffee Woman it is!   Superpowers include:  high caffeine tolerance; overthinking; snark; wasting time she should be working playing with online animation programs.