Lincoln’s accessibility being questioned
Editor’s note: The Lincoln News Messenger is featuring a two-part series on the city of Lincoln being threatened March 26 with a lawsuit by Byron Chapman at the City Council meeting. Today’s part 2 looks at state laws that might limit Chapman’s legal options and what the city of Lincoln needs to do to be fully ADA compliant. Part 1 last week looked at why resident Byron Chapman is threatening a lawsuit with the city of Lincoln.
The Americans with Disabilities Act (ADA) federal statute signed into law in 1990 by President George Bush, specifically addresses discrimination against individuals with disabilities.
Under ADA law, businesses that provide goods or services to the public are called “public accommodations” and include stores, restaurants, bars, service establishments, theaters, hotels, recreational facilities, private museums and schools, doctors and dentists’ offices, shopping malls and other businesses. The ADA lists 12 categories that apply and nearly all businesses are included, regardless of the size of the business or the age of their buildings.
However, commercial facilities, such as office buildings, factories, warehouses and other facilities that do not provide goods or services directly to the public are subject only to the ADA’s requirements for new construction and alterations, according to ada.com.
While ADA law requires all businesses, big or small, to provide “reasonable access to all disabled customers and clients,” two new state bills co-authored by Senate President Pro Tem Darrell Steinberg, state bills 1608 and SB 1186; address ADA abuses and frivolous lawsuits in California.
California State Bill 1608 (2008) gives businesses accused of non-compliance with ADA laws a chance to rectify the problem and resolve a dispute before going to court. The bill provides benefits and litigation advantages to a business that uses a Certified Access Specialist (CAS) to inspect for disability access compliance and recommend necessary repairs, according to Steinberg in a letter to Sen. Dianne Feinstein, dated March 28, 2012.
California State Bill 1086 (2012) reduces statutory damages from $4,000, the minimum fine under California’s Unruh Act, to $1,000 or $2,000 per incident for business owners who correct alleged violations within 30 to 60 days of receiving a formal complaint. It also prohibits “demand for money” pre-litigation letters and prevents “stacking” of multiple claims to increase monetary damages. For example, under State Bill 1086, disabled persons would have to explain why they needed to visit the same business multiple times knowing that business has an uncorrected access issue.
What do SB laws have to do with Lincoln’s ADA issues?
During the March 26 City Council meeting, disabled resident Byron Chapman threatened to sue the city of Lincoln citing alleged ADA issues at McBean Park Pavilion where the council meetings are held. He specifically said that the men’s toilet stall, the front entry and the disabled parking spaces at the Pavilion were non-compliant.
Some critics say that Chapman’s history of having filed more than 150 lawsuits could be seen “as an abuse of the spirit” of ADA laws. On the other hand, Chapman argues that suing is the only way to get municipalities and businesses to comply with laws that have been in force for 23 years.
Rhys Williams, press secretary for state Sen. Steinberg, said that the intent of State Bill 1086 was to do away with minor violations and litigation abuse.
“What we did was lower the amount that an individual could claim for each violation,” Williams said. “The issue wasn’t so much the $40,000 amount; it was litigants and lawyers issuing upfront demand notices —legal shakedowns — where they were writing to companies saying, ‘We find 10 violations and we’re going to take this to court or you can settle now for $20,000.’”
What does Lincoln need to do to be compliant with ADA laws?
“As our communities age, we need to put the focus on accessibility and inclusion front and center. Just like everybody else, people with disabilities have a right to live, work and spend their money in their community,” said Anthony Sauer, director of the California Department of Rehabilitation.
In compliance with ADA law, the city of Lincoln completed an Americans with Disabilities Act Evaluation and Transition Plan on May 24, 2011. The plan can be accessed online by Googling “Lincoln, CA ADA Transition Plan.
The transition plan’s goal is to “ensure compliance with the Americans with Disability Act of 1990, California Government ADA Code”.
The city’s ADA Evaluation and Transition Plan seeks to:
1. Identify barriers and code deviations that limit access to programs, services and activities
2. Describe methods of barrier mitigation and accommodation for persons with disabilities
3. Specify the recommended schedule for removing identified barriers
4. Indicate the city official responsible for removing identified barriers
After identifying potential ADA code violations, Lincoln’s transition plan recommends access improvements for specific city buildings and spaces open to the public. Those areas include City Hall, libraries, schools, civic auditoriums, swimming pools, surface streets, sidewalks and parking lots.
Citing the advice of attorneys, the Lincoln city manager’s office, the mayor and councilmen declined to provide information regarding ADA issues because of a possible lawsuit.
However, the following estimated costs to address Chapman’s concerns at McBean Park Pavilion, are taken from Lincoln’s transition plan. These costs are estimates and do not specifically apply to the McBean Park Pavilion but are generally representative of costs for the same kind of improvements at other city sites.
To remodel existing toilet to create a single-occupant accessible restroom: $30,000.
To provide a site path of travel for a wheelchair from the parking lot to the main entry and exit door: $250.
In a parking lot with 51 to 75 spaces, to create three accessible parking spaces with signs, including a minimum of one required van space: $900.
Ramp to front entry door: To rebuild the entry ramp and provide a landing with slope no greater than two percent: $1,200.
Door closer: To adjust the regular door to accessible standards of five pounds, maximum pull: $25.
Mark Miller, director of Lincoln’s public works, said the city “has made a lot” of ADA access improvements and additions.
“We’ve spent several hundred thousand dollars over the last few years improving our buildings, City Hall, the Civic Auditorium and curb cuts throughout town,” Miller said. “And we’ve made accessibility improvements in routes to and from schools and any new project we do, we put in improvements to make it accessible.”
Shirley Russell, a 74-year resident of Lincoln, said the town “has made an effort” to meet accessibility needs.
“As money has come available, the city has remodeled older buildings such as the Civic Auditorium from the 1920s,” she said.
Asked how Lincoln could further show good faith with ADA compliance, Rocky Burks, a disability access consultant, said the city of Lincoln should form a “disabled access advisory committee.”
“Bring in the disabled community and ask them to be part of your process,” Burks said.
What happened when Byron Chapman sued the city of Dixon?
In a phone conversation Tuesday, Dixon Mayor Jack Batchelor told The News Messenger about Chapman’s lawsuit against the city of Dixon which occurred in March 2011.
“Mr. Chapman is well known in Dixon for his litigation issues,” Batchelor said. “We ended up spending $40,000 out of our General fund on ADA compliance issues. Also, Mr. Chapman did attempt to sue us for $80- to $90,000 for his ‘personal denial of access to City Council meetings on specific dates.’ Even though we didn’t believe he was denied access, we settled for $14,000.”
Batchelor added that Dixon spent another $2.4 million from 2002 to 2006 out of the city’s General Fund to redo curb cuts so that they were ADA compliant along all major access routes. The city of Dixon also replaced playground equipment and improved its municipal swimming pool, according to Batchelor.
“Let me be clear that none of us is begrudging spending that money,” Batchelor said. “But what becomes a hard pill to swallow is when we continue to work on improving our streets and buildings and it’s not being done fast enough for Mr. Chapman and his compatriots.”
Batchelor said that “even an empty lot in Dixon” became the focus of a potential lawsuit. Because cars were parking in the lot and the city didn’t post a “no parking” sign, the lot was viewed by local disability activists as non-compliant with ADA laws, according to the Dixon mayor.
“We ended up having to put up a four-foot fence and provide two ADA-access parking spaces so that mobility-impaired people could offload from their vehicles,” Batchelor said.
Batchelor said the city of Dixon and its businesses conducted a 3 ½- year battle with Chapman over compliance issues.
“Mr. Chapman is very litigious. He believes that he’s passionate about helping other disabled people. But it remains to be seen if he’s helped anybody besides himself,” said Batchelor.
At the Lincoln City Council meeting this past Tuesday night, Chapman again stated in a public address to the council that he does not sue entities for his “personal enrichment but rather to advance ADA compliance.”
“If you think this is a moneymaker for me, consider why wouldn’t I skip the talk and go right to suing? For 3 ½ years, the city of Dixon dragged their feet and I ended up suing them. Some of you might see me as that S.O.B. who turns a profit and makes a living suing, but ask yourself, why is the city (Lincoln) so far behind getting the work done?,” Chapman said.
While at the Tuesday night meeting, Chapman invited The News Messenger into the Pavilion toilet stall and demonstrated he could not turn the chair around to access the commode once his motorized wheelchair was in the stall.
Lincoln Hills resident Jan Browne suggests that the city of Lincoln should be proactive about potential ADA accessibility issues.
Browne, paralyzed and confined to a wheelchair because of polio, moved to Lincoln in 2001. Browne said she tried to form a transportation committee, along with then councilman Tom Cosgrove, to get more ADA accessible buses for Lincoln.
“We wanted to get more service. We had one bus, but with Lincoln’s population, we needed three. But nothing happened,” Browne said.
Browne has some advice today for the city.
“If this gentleman wants to sue, I’d say to the city that they should go ahead and make the building (McBean Park Pavilion) fully accessible rather than wait to be sued. And I think (Mayor) Stan Nader should get in a wheelchair and try to open that front door at the Pavilion,” Browne said.