Metro Pulse/Cover/ADA Access Now

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ADA assessments are available, DRC says

Since neither the city nor county codes departments requires businesses to comply with Americans with Disabilities Act, thousands of restaurants, retailers, and hotels in Knox County are probably vulnerable to lawsuits right now. After all, there's hardly a business owner in town who knows the minimum size of a handicapped restroom sign, the required height for a toilet paper dispenser, or the maximum force that should be required to open a door.

There are many things that businesses might do to protect themselves, however. One is to get the regulations and have a look at them; they are available on line at www.ada.gov. A small-business owner also might hire a qualified ADA architect to do a quick survey of their business and tell them what they need to do to comply.

The Disability Resource Center, which is funded by the federal and state governments, also conducts ADA access studies for businesses for a small fee (usually between $150 and $200 per hour). "It's our mission to empower people with disabilities toward full community participation and integration," says DRC director Lillian Burch.

Helping businesses is not the only thing the DRC does. According to Burch, the organization helps about four or five hundred people a year achieve various levels of independence with independent living skills training, peer support, advocacy, and information and referral.

Burch says she is ambivalent about ADA Access Now and its tactics. On the one hand, she feels for the businesses that are being targeted and realizes that it is not fair that they are being sued for things that local government never told them they had to do. But Burch, like many people who work with the disabled, is frustrated that it is taking so long for society to become ADA compliant. "There are still a lot of people who want to participate in society but can't because of architectural and attitudinal barriers," she says. "For example, there is a restaurant that I go to in Knoxville with a friend, who is in a wheelchair. If she wants to use the restroom, she has to actually go outside and come in through a different entrance because the direct path has a step. It hurts me to see that."

—B. C.

Florida advocacy group files wave of Knoxville lawsuits

by Bill Carey

Talk about an entrepreneur's nightmare. Business is good; you've had no recent complaints from the city codes department, the state revenue department, or any other regulatory entity. Then a disabled person shows up at your place of work accompanied by a lawyer carrying a tape measure and a notebook. Before you know it, they're moving around your store or restaurant, measuring everything from the width of the aisle to the height of the checkout counter to the distance from the floor to the toilet paper dispensers. They leave without saying anything to you.

A few days later, you find out that the disabled person has filed a lawsuit against you in federal court, claiming your business violates the Americans with Disabilities Act. You call your lawyer and tell her what has happened. Your lawyer takes a few days to look at the lawsuit and make a few calls (for $150 an hour, of course).

Eventually, she calls you back and tells you that the group that has sued you has done it hundreds of times before against hundreds of other businesses, and that they almost never lose. She advises you to settle. But you're going to have to pay the plaintiffs' attorney's fees; your lawyer estimates that amount to be between $5,000 and $15,000. In addition, you have to agree to do everything else that the ADA requires, which no one has told you about until now, such as widen your aisles, adjust your counters, and move your toilet paper dispenser.

If this scenario sounds farfetched, it's not. It's happening right now to at least 10 businesses in the Knoxville area, all of which have been sued since the spring of 2002 for allegedly violating ADA regulations. The businesses include:

Buddy's Bar-B-Q, which has eight restaurants in the Knoxville area, three of which have been sued.
The Mandarin House Chinese restaurant, which has three locations in Knoxville, all three of which have been sued.
Sam & Andy's restaurant, which has four locations in Knoxville, two of which have been sued.
Sawyer's of Knoxville restaurant, which has two Knoxville locations, both of which were sued.
The Radisson Summitt Hill hotel.
The Holiday Inn Select Hotel downtown.
The Hilton Hotel downtown.
The Star of Knoxville riverboat, which does business as the Tennessee Riverboat Co.
Associated Therapeutics Inc., a physical therapy clinic on Mineral Springs Avenue in North Knoxville.
Simon Properties, which operates the West Town and Knoxville Center malls.

In each lawsuit, attorneys for the plaintiffs claim that their clients have been "denied access" to the properties and have "suffered direct or indirect injury" as a result of the defendant's actions. Each suit asks the judge to order the business to bring its buildings up to ADA regulations and to "award reasonable attorney's fees, costs (including expert fees) and other expenses of suit," to the plaintiffs.

It is not a coincidence that all these lawsuits are being filed now. Knoxville is being targeted by a Florida-based advocacy group called ADA Access Now.

ADA Access Now has been in existence since 1998. According to its web site (www.adaaccessnow.org), during the last four years the organization has sued more than a thousand businesses and municipalities, including Macy's, Carnival Cruise Lines, hospital giant HCA, and Marriott. Today, ADAAN has more than 700 members and 14 attorneys. The organization encourages its members to file ADA-related lawsuits in their own community jurisdictions against restaurants, retailers, and local governments (on membership forms, applicants are asked to check whether or not they are interested in becoming a plaintiff). "Experience has taught us that we generally do not succeed in achieving compliance without instituting a lawsuit," the web page explains.

ADA Access Now also promises that its attorneys will prosecute lawsuits free of charge on behalf of its members. Most of those suits are settled out of court, so the terms of settlement are not publicly disclosed.

Each of the dozen or so ADA Access Now-related lawsuits filed in U.S. District Court here is filed on behalf of one of two plaintiffs: Jan English and Marie Anderson.

English says she is a former member of the U.S. Marines who cannot walk because of a foot condition. "Having lived in Portland and Miami, where the handicapped are respected, I can tell you that you just can't believe how bad things are here," she says.

Anderson, who is partially paralyzed because of a stroke and confined to a wheelchair, is very active in American Disabled for Attendant Programs Today (ADAPT); in fact, she volunteers as ADAPT's East Tennessee media coordinator. "I have been to many restaurants and stores and hotels in this area, and there are accessibility problems almost everywhere," she says. "I just want these businesses to get these problems fixed."

Like English, Anderson says she is not doing this for money; in fact, she says she's not getting a dime for participating. "I'm not suing people for money; I just want to be able to get into these places like a normal person," she says.

However, Anderson says that she knows little about the lawsuits that have been filed on her behalf by attorneys affiliated with ADA Access Now. She says that she agreed to join ADA Access Now and told the organization that she was willing to be a plaintiff, but did not know that some of the lawsuits had been filed under her name until she heard about them months later. "To tell you the truth, I wasn't going to actually file the lawsuits, but they've [ADA Access Now] got me as a plaintiff."

English and Anderson are represented by Miami-area attorneys Gene Zweben and Gregory Schwartz. Zweben and Schwartz specialize in lawsuits filed by ADA Access Now. "A lot of the clients we represent have been disabled for a long time and have tried to talk to businesses to get them to comply and have gotten frustrated and finally contacted us," Zweben says. "But the law is the law, and it is time for everyone to comply with it."

With most of the lawsuits pending, most local attorneys have advised their defendant clients not to speak to reporters until the cases are settled. "We are at the early stages of litigation," says attorney Hilary Williams, who represents the Tennessee Riverboat Co. and has advised them to remain mum for now.

Two business owners who are willing to talk, however, are Chris and Shannon Captain, the owners of Sam & Andy's. The Captains, who inherited the business from Chris Captain's grandfather, say they first met English in August 2001, when she walked into their West Town Mall location carrying a dog that was wearing a T-shirt, hat and sunglasses, all of which were decorated with University of Tennessee logos and colors. Shannon Captain says she approached English and asked her if she was going to keep the dog in the restaurant, since state health department regulations forbid animals that are not certified service animals from being in eating establishments. According to Captain, English got belligerent, said that Captain had no right to question her, and said that her animal was, in fact, a service animal (a claim that is still in dispute). During the next few months, Captain says, English made repeated trips into the restaurant, often ordering food and leaving without paying for it and, on at least one occasion, letting her dog eat lemons off the condiment table. After English began telling other merchants and customers that she was being treated rudely by the people at Sam & Andy's, the Captains asked their attorney Bob Summers to write a cease and desist letter to English, which he did.

English has a different story. She says she carries her dog with her because it can accurately predict her seizures. She also says that the people who work in Sam & Andy's were rude to her. "She [Shannon Captain] freaked, she screamed, it was like my dog was going to bite her," she says. English also says that it is "absolutely not true" that she ever ordered food and left without paying for it or that her dog ate off the condiment table.

The suit that attorney Schwartz filed against Sam & Andy's accuses the restaurant of several ADA violations, including improper doorknobs, toilet paper dispensers at the wrong height, inadequate handicapped parking, an illegal service animal policy, and other things. The suit claims English has been "injured" and "continues to be injured" because she is "unable to and continues to be discriminated against due to the architectural barriers that remain" at Sam & Andy's locations. "The places that we have filed lawsuits against refused to give me service, harassed me, insulted me, and refused me my civil rights," English says.

Business owner Chris Captain says the charges aren't true. Even though he has made a few minor alterations to all his locations since the suit was filed, such as changing doorknobs and moving the toilet paper dispenser, he says that the business was easily accessible for the handicapped prior to the lawsuit being filed. "This is a very personal restaurant, and we have five or six handicapped people who come in here all the time and we treat them with respect and concern and do everything we can to help them get their food and everything," he says.

The Americans with Disabilities Act was passed by Congress and signed into law by President George Bush in 1990. The much-heralded law was intended to protect disabled people from being discriminated against or denied access to public places such as courthouses, airports, restaurants, and stores. However, rather than write the thousands of specific ADA regulations themselves, Congress and the president authorized the U.S. Justice Department to write them.

The Justice Department did so, and the document that contains all the ADA regulations is called 28 CFR Part 36. It tells you everything that you need to know about how to make your business ADA compliant, from how high to set the towel racks to what slope to make your handicapped ramps. But the 75-page document, like most government regulations, is somewhat user-unfriendly. It does not contain an index, for instance, which makes it difficult to find what you are looking for. Even though the document is detailed and specific, it does contain one very vague and subjective clause. ADA regulations say that businesses can only be required to meet the letter of the law if it is "easily accomplishable and able to be carried out without much difficulty or expense."

Despite the existence of the ADA regulations, serious questions exist about whether businesses have to meet ADA requirements and who is responsible for making certain that they do. Neither the state of Tennessee, the Knox County Codes Department, nor the city of Knoxville requires that new and renovating businesses come up to ADA compliance. Tennessee's code, which is used in all 95 counties, was originally written in North Carolina and is the same one that is in place in several other states. That code is not as stringent as ADA; Knox County building inspectors actually have no legal right to require business owners to go above and beyond those codes to meet ADA. "If the state or the county were to adopt a more stringent code, then that would be different, but for the time being, I cannot as a codes official tell someone to do something that is above what Knox County has adopted," says Roy Braden, Knox County's building official. Charles Cummins, the city's building official, gives a similar story. "My understanding is that the ADA requirements can only be enforced and interpreted by the Justice Department," Cummins says. "We can't interpret that code nor can we enforce that code."

The fact that federal regulations say one thing and local regulations say another angers attorney Mike Mollenhour, who represents Associated Therapeutics. "What you have here are businesses that haven't ever been told by the city or the state or by any customers that they have done anything wrong, and one day they find out that there is some technical violation buried under pages of verbiage that results in a lawsuit," Mollenhour says.

Tim Zitzman is an attorney with Bass, Berry and Sims, which represents several clients being sued by ADA Access Now. He says the series of cases should get the attention of every business in Knoxville. "Every restaurant, gift shop, and hotel is vulnerable," he says.

If one looks over the many ADA Access Now lawsuits, some of the same charges come up again and again. Several of the hotel suits charge that handicapped parking spaces are inadequate; that check-out counters and coat hooks are too high; that access ramps are too steep; that pay phones don't have volume control; that fitness centers have equipment packed in too tightly. The suit against the Holiday Inn claims that "the emergency communications device door" inside the elevator "requires more than five pounds of force to open." The suit against the Tennessee Riverboat Co. claims the boat has "no means of vertical access onto the ship." The suit against the Mandarin House claims that the buffet table and the bar are too high. The suit against Buddy's Bar-B-Q (which has already been settled for an undisclosed sum) made numerous allegations about parking lots, eating areas, and restrooms.

In the complaint against Sawyer's, plaintiff Anderson and attorney Zweben alleged that the doorknobs on the doors leading to the restrooms weren't ADA compliant. As it turns out, ADA does not allow doorknobs that require "pinching and grasping," which ostensibly means that just about any doorknob other than a simple handle doesn't meet ADA codes. Sawyer's co-owner Steve Hobby says he wasn't aware of this regulation; since the lawsuit was filed, he has switched the doorknobs so that people no longer have to turn them to get in the restrooms.

ADA also requires that coat racks be 48 inches off the ground. The coat rack in the women's restroom was too high, so Sawyer's has taken down the coat rack in the women's restroom (even though ADA requires that coat racks be a certain height, it doesn't require that they be there in the first place).

But according to Sawyer's attorney K.O. Herston, not everything that plaintiff Anderson and attorney Zweben have alleged is true. In the suit, Anderson alleges that the restaurant's curb ramp is too narrow, that its sidewalk is too narrow, and that its side door lacks proper maneuvering space. Herston had an architect familiar with ADA regulations visit Sawyer's restaurant; that architect measured each of those areas and concluded that they were well within ADA guidelines. "Some of the allegations are accurate while others are demonstrably false," Herston says.

Attorney Gene Zweben disagrees. "There are certain experts that disagree as to the interpretation of the ADA," he says. " I don't know who his expert is, but until our experts go out and do a full investigation, we can't make a final determination as to whether his expert was right. The things that we have alleged have been alleged because our clients has told us that this is the case. I am confident that what we have alleged is correct."

Many of the defendants' attorneys also say that Schwartz and Zweben filed these lawsuits carelessly. Attorney Zweben and plaintiff English have also sued the Dollywood Foundation, the charity affiliated with Dolly Parton that distributes free books to children. However, Zweben told Metro Pulse that he intended to file the lawsuit against the Dollywood theme park. The Dollywood Foundation, however, still had to pay legal fees so that its attorneys could take the legal steps necessary to point out that the suit was filed in error. The lawsuit against Sam & Andy's was originally filed against Chris Captain's uncle John Captain, who does not have an ownership interest in the restaurant. The Sam & Andy's lawsuit was also filed against two locations: West Town Mall and Fountain City. Chris Captain says that he almost never leaves the Fountain City location and claims that plaintiff English has "never, ever" been in the restaurant, which raises questions about how English can claim that the location is not ADA compliant.

Zweben denies that this is the case. "The people who have filed the lawsuits have been to every place that has been sued."

Another contention from defendants is that they weren't given any warning before the lawsuits were filed. "They are filing lawsuits without making any effort to resolve it beforehand," Herston says. "They never told Sawyer's that they had a problem and never wrote a letter or anything." Attorney Millenhour is even more outspoken. "From a small-business person's point of view, this falls into the category of litigational terrorism."

For the time being, the only thing that seems certain is that the lawsuits will continue to be filed and that small-business owners will be nervous. Like other defendants, Chris and Shannon Captain don't know what will happen with their case or how much they will have to pay to get it over with. Attorney Ed Summers says he intends to defend the case, "but as it nears trial, if there is an opportunity to settle it for less than it costs to defend it, then my advice would be for them to settle." Other attorneys such as Millenhour, Zitzman, and Herston say that they haven't decided what they will advise their clients to do.

English says she intends to follow through on her Dollywood lawsuit, saying that "90 percent of it is not accessible." She also says that she intends to sue the city because of accessibility problems at the City-County Building. "I won't stop until the people in the city of Knoxville accept the federal law that was passed 12 and a half years ago, and until people accept us and give us the same treatment that they give everyone else," she says. "I'm not doing this for fun."