A Note from Matt

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fsu accessibility symbol

Back to School – This graphic is the symbol of accessibility at Florida State University. It reflects the importance of a free and equal education for all persons with disabilities, which is essential to ensure that there are persons with disabilities who are leaders in society, including, lawyers, doctors, teachers, politicians, and every single other profession. 

According to the UN Convention on the Rights of Persons with Disabilities, the right to education is a cornerstone of full societal inclusion. The convention (of which the United Sates has not adopted) requires nations to ensure an inclusive education system at all levels and lifelong learning directed to:

  1.  The full development of human potential and sense of dignity and self-worth, and the strengthening of respect for human rights, fundamental freedoms and human diversity;
  2. The development by persons with disabilities of their personality, talents and creativity, as well as their mental and physical abilities, to their fullest potential;
  3. Enabling persons with disabilities to participate effectively in a free society.

Without education and inclusion, there will be no effective enforcement of Disability Rights.

Casey Martin – Disability Accommodations in Sports!

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Casey Martin in his golf cartThe ADA has had an overarching impact on all aspects of life, including competitive sports. Casey Martin, a professional golfer, highlighted the true impact of the ADA in the sports world in 2001 when he won his lawsuit against the PGA tour under the Americans with Disabilities Act. The PGA Tour, the main organizer of professional golf tours in the United States, required the golfers to walk between shots in the third round of competition. Martin, who has a circulatory condition which affects his right leg, was unable to adhere to this rule, and therefore requested a golf cart as an accommodation for all rounds of the game. Through the ADA’s stipulations of accessibility and inclusion, the Supreme Court ruled for Martin in a 7-2 decision. This court ruling demonstrated the importance of complying to the ADA by providing reasonable accommodations for disabled athletes while still playing a fair game.

Kids Crusaders

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By: Julie Fioravanti

Nick wearing his ADA shirtWelcome to this month’s edition of Kids Crusaders as we celebrate the ADA, a law that went into effect 25 years ago on July 26, 1990. My son was born in April of 1991. While we knew from the day he was born we were going to be faced with challenges, we had no diagnosis and no idea what his limitations would be. It wasn’t until he was 4 years old that the ADA even remotely entered my mind. Nick was diagnosed at 10 months of age with Cerebral Palsy and the first few years were spent all consumed with therapies and early intervention programs.

My very first experience where I actually gave any thought or research into the ADA was at a local amusement park. We had taken Nick there for the day to enjoy some of the rides and the waterpark. We paid to park and I do remember that there were parking spots that were close to the entrance that were designated handicapped parking.

nick, julie, and julie's husband with their ada shirtsUpon entering the park, we went directly to the section of the park for younger kids. We scoped out all of the rides, being careful to take note of any ride that would accommodate Nick and one of us, as he was unable to sit unsupported. The very first ride was a kiddie roller coaster (imagine more like a few wavy hills instead of “roller coaster”). We stood in line waiting with the other families and Nick was giggling and happy. I walked to the front of the ride to talk to the girl that was operating the ride. I wanted to make sure that one of us would be able to ride with Nick to support him; she assured me that would not be a problem.

After a short wait it was finally time for Nick to ride. I assisted my husband in putting him in the back seat of the ride and my husband got in and sat next to him. It was at this point that a different ride operator approached my husband and told him he would have to get off the ride. I explained to him that I had asked the girl working there before him if it was ok and she had said that it was. He said she was wrong and my husband would have to get off the ride. This was all transpiring in front of the other families. One father approached me and offered to have his 10 year old daughter ride with Nick. I thanked him but declined. It was at that moment that the letters ADA entered my thoughts. Not knowing what the law was, I knew that there was a law that had been passed and my interpretation of that law was that my son should have equal access to these rides just like anyone else. While the discussion started with the ride operator saying that my husband had to get off the ride, it had quickly changed to him saying that my son also needed to get off of the ride. That is where I decided to stand my ground. This was in no way acceptable to me and I honestly didn’t care what anyone thought. I refused to let my husband get off the ride and the ride operator refused to operate the ride. For 15 minutes the ride was full of kids waiting and parents now standing by looking on, some in support of what I was saying and others being extremely rude and saying hurtful things (not worthy of getting credit in my article). Finally the ride operator called the park manager. I explained the situation and he asked if my husband and son would get off the ride so that the other kids could enjoy the ride and I said “No, not happening.” He said he wanted to talk about this someplace other than at the ride attraction. I stood my ground. No. He called park security. The ride was still not operating and some parents had taken their kids off the ride, no longer wanting to wait. Some waited, probably mildly entertained by my refusal to comply. Park security said they were “escorting us out of the park.” That was going to prove to be difficult since my husband was still seated in the ride with my son. I stood my ground. No. The police were called. Ahhh, my ground was standing was starting to shake a little. They asked us to get off the ride and to take the conversation into the office with the park manager. Being asked to take my son off the ride by the police changed up my confidence a bit, so we agreed to go with them to the office to discuss the situation together. Trying to maintain some sense of calm and not sound ignorant, I explained in front of the police that the park was “breaking a law” by denying my son access to this ride. When asked what law they were breaking I quickly began pulling on what little information I truly knew about the ADA. I was informed by the park manager that the park was in compliance with the ADA because they had handicapped parking spaces and handicapped stalls in each bathroom. My response to that, which I would love to share (however the editor may not approve of the language involved), was something that made a huge statement and also got us escorted out of the park by the police. The park refunded our money for the admission but refused to refund our parking fee since we had parked in a designated handicapped spot.

The ride home was about an hour long and I spent most of it crying because I was so angry at what had taken place and at my lack of knowledge about the law and how it applied to our son. I did contact local legal advocates that contacted the park and the park owner called me to apologize. The apology was followed by a…”but” statement at which point I just became even more frustrated. Long story short, the park which was privately owned at that time, through mediation with the advocacy center, expanded their “kiddie” section of the park the following year to include rides and attractions that would accommodate having children ride with their parents. The owner sent a letter to the house with information regarding the changes that were made along with free passes to return to the park along with a cheap, “crunchy” stuffed animal for Nick that you would win at an arcade booth. Still feeling unhappy with our entire experience, I returned the package to the owner and we have not returned to the park with Nick. The theme park was subsequently bought out a few years later by a large well known company and has expanded and is operating to this day. We went to the park once without Nick to see what, if any changes had been made since the purchase of the park. Adequate changes had been made and accessibility is no longer an issue.

For us, that was 20 years ago. The changes that I have seen over the past 20 years have been huge. While I do not have a degree in law, our adventures with Nick over the years and accessibility issues have broadened my awareness and my knowledge base. I have a better understanding of the law and the impact that it has had for people living with a disability. Ten years ago one of our adventures with Nick led us to Matthew Dietz, which led to yet another adventure (but I will let Matthew share that one!)

Disability rights ARE civil rights. Stand your ground, even if it feels like it is shaking. I have always stood mine and will continue to stand mine, knowing that when I take a stand, I take it not only for my son but for others as well.

“A strong person isn’t the one who doesn’t cry. A strong person is the one who sheds tears for a moment, picks up her sword, and fights again.”

Thanks for continuing to follow me on my journey. Hopefully there will be a day when a sword will not be needed. There has been a lot of progress made in the past 25 years. Happy Anniversary ADA….

Until next month…live, laugh, love and know that you are never alone.

Julie     (Julie.kidscrusader@gmail.com)

“The Americans with Disabilities Act (ADA) was signed into law on July 26, 1990, by President George H.W. Bush. The ADA is one of America’s most comprehensive pieces of civil rights legislation that prohibits discrimination and guarantees that people with disabilities have the same opportunities as everyone else to participate in the mainstream of American life — to enjoy employment opportunities, to purchase goods and services, and to participate in State and local government programs and services. Modeled after the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, religion, sex, or national origin – and Section 504 of the Rehabilitation Act of 1973 — the ADA is an “equal opportunity” law for people with disabilities.” (www.ada.gov)

Litigation: Cruise Ship Accessibility After 25 Years!

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By: Matthew Dietz

person in a wheelchair not being restricted by disability, on a cruise ship

Twenty years ago, accessible cruising was an impossibility. Notwithstanding that a cruise ship – a resort at sea – was the ideal vacation with everything at one’s fingertips — for a person with a disability it was just impossible. There were no accessible rooms, no accessible bathrooms, public rooms on different levels without any access. To get out onto the deck, into cabins, or into any bathrooms, most cruise ships had three inch high thresholds (called combings), and the rare times when ramps were available, the ramps were too steep for a person in a wheelchair. Certain types of wheelchairs were not allowed on ships, the blind were required to have “companions”, and the deaf did not get interpreters.

Twenty years ago, the question was why.   Why shouldn’t these vessels that serve the American public, and service United States ports be subject to the same United States laws. The question was not definitively answered until 2005 when the Supreme Court ruled in Spector v Norwegian Cruise Lines that vessels that serve US ports must comply with US law. However, Spector was not even on the horizon when I sued Carnival Corporation on behalf of Edward Resnick and Access Now in 1998.

Edward Resnick was a pioneer in Disability Rights advocacy. During World War II, he served in the United States Navy. Following his military service, he graduated from the University of Florida with B.A. and J.D. degrees, both of which were received with highest honors. In 1954, Edward contracted polio and remained a quadriplegic and full time wheelchair user. In a world of barriers to persons with disabilities, Edward became known as the father of condominium law in the southeast. His successful law practice specialized in condominium, real estate and banking law until his retirement in 1982. When the Americans with Disabilities Act was passed in 1990, Ed, and his wife Phyllis, believed that this new mandate would change their lives and Ed would have access throughout Miami Beach and Dade County.   It didn’t happen. No one seemed to notice.

Ed and Phyllis wrote dozens and dozens of letters to local businesses and hotels and advised them of the new law, with the expectation that access would be provided. It didn’t happen. No one seemed to notice.

Ed had enough. Ed and Phyllis founded Access Now. Ed waited enough and the time was NOW. So in the 1990’s Ed, and several other advocates decided that they were going to be ADA advocacy juggernauts, and that this new law provided them the tools that they needed to ensure that their communities would be accessible to them as well as all others in the community now, and in the future.

So, in 1998, when, on behalf of an elderly couple from Massachusetts, I claimed that the man’s shoulder injury was due to a door on an elevator that did not have proper controls for persons with disabilities, Ed and Phyllis Resnick came to me and said, sue Carnival Cruise Lines and make them accessible. Ed said that it was not fair that he, or any other person who uses a wheelchair, should not have the opportunity to go on a cruise.

At the time, the US Access Board, the governmental agency responsible for developing and maintaining accessibility guidelines for transportation vehicles, was still in the process of developing guidelines, but, in the tenet of Access Now, access was to be NOW and not later. Access Now sued Carnival Corporation, and the parties settled in a landmark settlement in 2002 which led to the push for accessibility in vessel design based on the alterations that can be easily made to passenger vessels.

Since that time, the Access Board has developed guidelines for passenger vessels, and the Department of Transportation has issued regulations for how passengers are required to be given equal access to all programs and services of a cruise ship.

But, discrimination still occurs. This month, DIG filed a lawsuit on behalf of Matthew Hendrick, who is a quadriplegic, who took a cruise on the Celebrity vessel Solstice from April 20 to May 1. Matt Hendrick has been involved in all types of activities such as being an avid cyclist, and was humiliated and degraded by not being permitted to have the same benefits of others who were on the cruise.

Matt booked this cruise through Celebrity directly using their disability specialist, and had an accessible sky suite which he paid over $9,000 for him and his companion. During the cruise, Matt went to the excursions desk when he was asked by the purser if he could take a step. When Matt said “no”, the purser said “you cannot even get off the ship.”

At some ports, the vessel will anchor off shore, and guests are taken to shore by small boats called “tenders”. Even if the ship is scheduled to dock at a pier, it can change to tendering. If Matt could not board a tender, he could not go off of the vessel or do any of the excursions. After being told that he cannot get off the ship, Matt Hendrick immediately went to guest relations who set up a meeting for him to discuss the issue with a purser. The purser encouraged him to just try to get on the tender and see what happened.

Matt went down to the disembarkation lounge where the Celebrity employee asked him if he could take a step. When Matt said “no”, the employee took him around to a lift, which lowered him level with the tender, where four crewmen held the wheelchair and put it on as easily as Matt had done on a prior cruise with another cruise line.   The tender filled up and then security stopped it before it started moving, a uniformed officer came by the tender and demanded that Matt leave the tender. The uniform crew demanded that Matt take the brakes off his wheelchair, and the officer took control of Matt’s wheelchair and took him off the tender.

Matthew Hendrick returned to his room and there was a message from the purser who encouraged him to go on the tender, saying how excited he was that Matt was able to get off the ship.   Matt went down to guest relations again and talk to a purser who was the manager, she explained that Celebrity’s policy was that to go on the tenders, guests must be able to take steps on their own. She further explained that the policy was for Matt’s safety. Once Matt returned home to Colorado following the cruise, he spoke with the disability services person at Celebrity and was told that the policy of needing to take a step to get on the tender had been around for seventeen years.

When I sued Carnival Cruise Lines in 1998, there were no regulations governing the actions of cruise ships, but since then, the US Department of Transportation provided guidance for cruise ship operators to follow the ADA.

What are PVOs’ obligations for assisting passengers with a disability in getting on and off a passenger vessel?

  1. If a passenger with a disability can readily get on or off a passenger vessel without assistance, you are not required to provide such assistance to the passenger. You must not require such a passenger with a disability to accept assistance from you in getting on or off the vessel unless it is provided to all passengers as a matter of course.
  2. With respect to a passenger with a disability who is not able to get on or off a passenger vessel without assistance, you must promptly provide assistance that ensures that the passenger can get on or off the vessel.
  3. When you have to provide assistance to a passenger with a disability in getting on or off a passenger vessel, you may use any available means to which the passenger consents (e.g., lifts, ramps, boarding chairs, assistance by vessel personnel).

Many similarly situated cruise lines do not have similar rules that prohibit the use of tenders by those who cannot independently take a step, including Carnival Cruise Lines, and some cruise lines have a specially designed lift system that provides seamless transfer from tender to shore, such as Holland-America Line.

While the ADA was passed in 1990, and Edward passed away in 2003, the rolling thunder of Edward’s mantra of ACCESS NOW continues to reverberate in my head. Because of Edwards’ advocacy, Matt Hendrick can take a cruise. Because of Matt Hendrick’s advocacy, persons with disabilities in the future will be able to come back to shore.

Rotary Club of Harris County– Meeting their community’s needs

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By Sharon Langer 

The Rotary Club of Harris County Georgia has a 17 year history of service to their community. I was privileged to join them this month at a summer breakfast meeting and hear about a unique project they started for persons with disabilities. I am hoping that by writing about this project other Rotary groups might be encouraged to start their own project. In partnership with a local faith based non-profit called FOCUS, residents who need ramps in order to enter their homes house in the country with long wheelchair rampare identified. These folks are unable to afford to put in the ramps and the Rotarians provide not only the materials but actually come to the homes and build the ramps. They are beautiful and functional. Please see the picture of one they built this year. The creed of Rotary is that leaders from all walks of life are united to amplify their individual contributions to make the world a better place to live and work. The Rotary Club of Harris County puts that creed to work. I want to particularly congratulate Tom Cheatham who was the fundraising chair this year for raising over $10,000 towards these endeavors.

https://www.facebook.com/HarrisCountyGeorgiaRotaryClub

Ride de Vuelta – Sports without limitations, we all can do it!!!

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By Mick Jackson

Mickride de vuelta logo Jackson, founder and former professional snowboarder from California, knows very well the Chilean terrain due to many competitions and visits to the country and created Ride de Vuelta in early 2014 in Santiago, Chile.
Mick’s motivation was to provide opportunities for people with disabilities but from an ecological and inclusive approach, which is very important to create and strengthen the links between friends, siblings, peers and family. Ride de Vuelta is where people with and without disabilities can learn a challenging and extreme sport because we are motivators…enabling people to dream!
How is it done?
Through a positive attitude along Mick, Pili, Anita, and Olmerwith multidisciplinary teams; outstanding athletes in snowboarding, surfing, SUP and horse back riding, along with professional support from special education professors, occupational therapists and physiotherapists. Ride de Vuelta’s team breaks it down into workable segments and creates methodological strategies so that every person in Ride de Vuelta can learn at their own style and pace.
Experiences:
Inclusive activities have been conducted in different Chilean ski resorts and in various beaches ideal for surfing such as Puertecillo, Punta de Lobos, Pullay, Buchupureo, Puerto Maguillines, among many others. These activities have involved people with Down’s syndrome, Asperger Syndrome, paraplegia, pervasive developmental disorder, mental retardation, paralysis and hearing impairment.
Today, we have the great challenge of being able to also incorporate visually impaired. We are generating access adjustmentsTeaching snowboard Termas de Chilean with Manuel, Victoria, Caterina and Carolina so we can all participate. Ride de Vuelta’s goal for 2015 is to bring Chile the first adapted snowboard for people with physical disabilities, as well as create the first inclusive snowboard championship in Chile.

Everyone that participates in Ride de Vuelta shares knowledge and helps develop tremendous skills by setting demanding goals in participating in these extreme sports, which in turn, installs confidence, passion and happiness. Ride de Vuelta wants to minimize any setbacks and maximize every triumph in the process.

With the support of our new sponsors Burton, Quiver, Windsurfingchile; Ride de Vuelta has had consistent quality and safety equipment that has provided unique and unforgettable experiences. In order to contribute and reach more people, Ride de Vuelta is in the process of becoming a foundation. We are seeking sponsorship and volunteers who want to promote these great sports without limits in an inclusive environment because individual commitment to a group effort is the essence of a team, a society and a civilization.

ADA 25th Anniversary – The State of the Florida Bar and Courts

ADA signing ceremony
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By Matthew W. Dietz

And today, America welcomes into the mainstream of life all of our fellow citizens with disabilities. We embrace you for your abilities and for your disabilities, for our similarities and indeed for our differences, for your past courage and your future dreams. Last year, we celebrated a victory of international freedom. Even the strongest person couldn’t scale the Berlin Wall to gain the elusive promise of independence that lay just beyond. And so, together we rejoiced when that barrier fell.
… I now lift my pen to sign this Americans with Disabilities Act and say: Let the shameful wall of exclusion finally come tumbling down. God bless you all.

Remarks of President George Bush at the Signing of the Americans with Disabilities Act, July 26, 1990.
Last month, Florida Supreme Court Chief Justice Jorge Labarga signed a proclamation honoring the 25th anniversary of the enactment of the Americans with Disabilities Act and designated July 2015 as a month of commemoration for the anniversary within Florida’s state courts system.
In 1990, the Americans with Disabilities Act was enacted to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” Since 1990, many more persons with disabilities have entered into the legal profession, but equally as important, the Florida Bar has attempted to create an inclusive profession where more attorneys who have obtained a disability later in life or chose not to disclose their disability were able to stay in the profession and are able to obtain accommodations so as to focus on doing his or her job, rather than focusing on barriers that prevent such lawyers from doing their jobs.

In 2004, the Florida Bar recognized persons with disabilities as an element of diversity to be included in the definition of diversity and inclusiveness in the Florida Bar at the First Diversity Symposium. Then Bar President Miles McGrane was committed to increasing representation of and services to its members with disabilities in the Bar. From that symposium, the Bar, with the assistance of Disability Independence Group, engaged in a systematic process to survey and develop focus groups of lawyers with disabilities to identify all barriers – architectural, policy and attitudinal barriers – for persons with disabilities in the legal profession in Florida. Every Florida Bar president since President McGrane has renewed the Bar’s continuing dedication to the needs of lawyers with disabilities.
In his June 2006 passing of the gavel address, Chief Justice Lewis vowed to make architectural accessibility of the courts one of his top priorities and drew attention to this issue, declaring, “These artificial barriers must not be in place for Florida’s citizens.” This vow was carried out when each court facility was surveyed and a plan was developed to eliminate architectural barriers in our state courts. Thereafter, in 2010, the Florida Bar proposed, and the Supreme Court amended, Rule 2.540, Rules of Judicial Administration, to ensure that all participants of services of the courts receive accommodations to have an equal opportunity to participate in programs and services of the courts. This rule was precipitated by a lawyer with a hearing impairment who required an accommodation to represent his criminal defendants but could not receive an accommodation unless he paid for it himself. This rule transformed an ad hoc process to obtain accommodations into a specialized and formalized process to ensure that all participants with disabilities have full and equal participation in all programs and services of the court without additional cost or burden. Additionally, each court maintained and trained an ADA coordinator who would be able to address disability-related issues.
Further, the Court kept up with technological advancements. By 2009, electronic filing became the new rule. In 2012, e-fling was required to be ADA compliant, which means that persons who are visually impaired could have the same opportunities to read documents with screen reader programs on their computer as other lawyers. The Florida Supreme Court further found that a litigant with a visual impairment had the due process right to receive documents and information in a format that was accessible to that person.

First, the Due Process Clause of the Fourteenth Amendment and Sixth Amendment to the United States Constitution grant the Petitioner a clear legal right of access to the courts. See Tennessee v. Lane, 541 U.S. 509, 523, 529, 124 S. Ct. 1978, 158 L. Ed. 2d 820 (2004). Second, the Fourth District has an indisputable legal duty to provide accommodations to the Petitioner. …. The substantive merit or lack of merit in the Petitioner’s underlying claim does not determine the ADA analysis. The Fourth District has refused to provide the Petitioner with an accommodation as mandated by the ADA and the Florida Rules of Judicial Administration. Third, the Petitioner has no remedy available other than to petition this Court for relief. Consequently, the Petitioner has satisfied the requirements for mandamus and we grant the mandamus petition as it pertains to Braille formatted documents.

Gabriele v. State, 99 So. 3d 943 (Fla. 2012).
While the mandate of the ADA has been implemented, it still has far to go before its mission has been accomplished. As our Bar both grows and ages, we need to ensure that the tools are available to ensure that the environment is inclusive for lawyers with disabilities and all barriers are eliminated to a successful practice. Twenty five years after the enactment of the Americans with Disabilities Act, persons with disabilities still face barriers to the legal profession and the legal system. We still have a long way to go.
1. Mental Illness
In February of 2014, the Department of Justice entered a settlement with the Supreme Court of Louisiana prohibiting it from requesting information regarding whether an applicant to the bar suffers from a mental illness, except if the information was related to conduct that would otherwise disqualify the applicant from becoming a lawyer. Notwithstanding the Department of Justice’s settlement with Louisiana, the Florida Board of Bar Examiners continues to use mental health questions and evaluations to screen and disqualify potential applicants with disabilities from becoming members of the bar.
For example, many members of the bar with a history of treated mental illness have “conditional” admission and are required to have their mental health provider report to the bar every quarter, and they must pay $75.00 per quarter for that privilege. Those lawyers have difficulty in finding jobs because of their “conditional admission” status. This self-appointed duty to screen for mental illness has a more dramatic effect on law students. I have spoken to many law students that have refused to receive mental health treatment for fear of being required to submit seal of florida board of bar examiners mental health records or of being subjected to “conditional admission” by the bar.

While this may seem Orwellian, this is the reality of what bar applicants face in the guise of protecting the public. However, there is no established correlation between merely having a mental illness – without any unlawful conduct, and the ability to practice. The Florida Board of Bar Examiners continues to demand disclosure of mental health history and records and screens all applicants for mental health status that is acceptable to them. According to an April Article in the ABA Student Lawyer, Shedding the Stigma of Mental Illness, depression rates for persons entering law school are at eight to nine percent, and then the depression rate skyrockets to twenty-seven percent after the first semester, thirty-four percent after two semesters, and forty percent after three years. Because of the stigma attached to mental illness, depression in lawyers is not often treated. Lawyers rank fifth in incidence of suicide by occupation, and one third of actively practicing lawyers suffer from depression, alcoholism, or both.
Focusing on actual dangers and conduct rather than stereotypical views relating to persons with treated mental illness is the essence of the mandate of the ADA. The existence of mental health eligibility screening by the Florida Board of Bar Examiners, and the imposition of differing standards of admission to lawyers with a mental disability is discrimination without evidence of need and is unlawful. If the Florida Bar attempted to screen existing members of the Bar for mental illness or treatment for mental illness, the ranks of the Bar would be decimated. However, the issue that is more of a threat are those persons who do suffer from mental illness, drug or alcohol addiction and do not receive assistance.

Instead of stigmatizing mental illness, we must work to ensure that lawyers and law students have access to mental health treatment as well as wellness programs to find methods in which to control depression and anxiety caused by the stressors that are part and parcel of our profession. Our Supreme Court must respond to the epidemic of mental illness by forming a committee with mental health professionals, lawyers who have mental disabilities, members of the bench, members of the Florida Board of Bar Examiners and the Florida Bar Board of Governors to develop appropriate questions to ensure that the public is protected from persons who demonstrate behavior that pose a safety to the public, to end stigma against lawyers and applicants to the bar with a history of mental illness, and to encourage psychological wellness and treatment for mental illness.

2. Ensuring that court accommodations are strictly administrative
Since the enactment of Rule 2.540, Florida Rules of Judicial Administration, there has been an unwritten exception to this rule, where the ADA coordinator, who is the administrator who provides accommodation, does not have the authority to control courtroom procedure. While the need for a sign language interpreter is not considered an alteration of courtroom procedure, appearing by telephone would be considered a change of courtroom procedure. For example, if a person is required, due to disability, to attend a court proceeding telephonically or videoconferencing, the attorney or party must file a written motion to the presiding judge as part of the case.
According to the Americans with Disabilities Act, an accommodation does not need to be provided if it is a fundamental alteration in the nature of the court’s program or activity. This would include an issue which would deny a criminal defendant the Constitutional right to confront his or her accusers. This should not include appearing by telephone for motion calendar or for an evidentiary hearing, or moving to a more accessible courthouse.

Of course, the danger is that, once the issue of disability is raised in litigation, it becomes subject to argument and evidentiary proof and becomes a corollary and distracting issue in the case. While the bench should work with the ADA coordinator to ensure that the burden to a court is minimized, the nature or extent of a disability and the court accommodation needed should not be subject to the rigors of the adversary process.

3. Ensuring that Courthouses remain accessible for persons with disabilities.

picture of the dade county courthouse with a fence for construction
Crumbling courthouses have a greater effect on persons with disabilities than those who do not have disabilities. The Miami-Dade County Courthouse houses a total of forty-one judges and only twenty-three courtrooms with a total caseload of 192,000 cases, forcing delayed access to the judicial system. Judges have been forced to leave their chambers as mold is discovered growing behind walls causing an unprecedented amount of illness. Water intrusion has ruined court files and has made it necessary for employees to wear boots and masks when working on lower floors. The probate division in Miami moved to a different facility to avoid further carbon dioxide exposure.
While this has an effect on the timeliness of hearings for lawyers and litigants without disabilities, it creates untenable work situations for those with breathing difficulties, mobility disabilities and other disabilities who are not able to use court facilities.

4. Ensuring that all rules do not discriminate against persons with disabilities
When the Court ensured that electronic documents are accessible to persons with disabilities in Rule 2.526, Rules of Judicial Administration, it implemented a rule that required court documents to be in compliance with state and federal accessibility requirements. However, when reviewing all policies and procedures, the Bar and the covisual sign for interpreter in ASLurts should always be aware of the needs of lawyers and litigants with disabilities. For example, in March, the Supreme Court approved the amendments to the Florida Rules for Certification & Regulation of Spoken Language Court Interpreters. However, by limiting the rule to “Spoken Language” court interpreters, it allows courts to obtain sign language interpreters that are not certified.
Lack of qualified interpreters for the deaf community has been a long-standing problem for access to the courts for the deaf. Approximately twenty percent of my current caseload are claims by the deaf who cannot obtain interpreters for medical treatment, employment, or governmental services. Many lawyers also refuse to provide interpreters for prospective deaf clients. The one place where the lack of effective communication access should not be an issue is the courts. While there are currently very few certified interpreters that are qualified to interpret in a legal situation, the failure to require such a certification provides no incentive for interpreters to increase their skills to meet the needs of the deaf community and the courts.
Conclusion
Persons with disabilities should not be “inspiring” or be required to “overcome” their disability to be a member of the Florida Bar. No other population needs to proffer its superstars to become eligible to be a lawyer. The ADA’s intent was to open the door and create a level playing field so anyone who has the intellectual ability and required ethical standards to be able to practice law should be able to do so. As a profession, we need to examine our practice, our rules, and our profession to remove attitudinal barriers and accept each other as equals.

Disability: The Market You’re Missing Part II

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By: Rachel Goldstein

Welcome back for part two of my series addressing some of the most commonly asked questions by businesses. In part two I am going to focus on the most frequently asked question, “What can I do so I do not get sued?” With such a complex question in mind, this article is by no means comprehensive and simply meant to provide a basic understanding of what businesses are obligated to do to ensure people with disabilities are not excluded.
Who/Where? Businesses that provide goods or services to the public are called “public accommodations” are covered by Americans with Disabilities Act (“ADA”), regardless of the size of the business or the age of their buildings. Public accommodations include stores, restaurants, bars, service establishments, theaters, hotels, recreational facilities, private museums and schools, doctors’ and dentists’ offices, shopping malls, and other businesses.
What? Public accommodations are required to (1) modify their business policies and procedures when necessary to serve customers with disabilities, (2) take steps to communicate effectively with customers with disabilities, (3) remove architectural barriers in existing buildings and (4) make sure that newly built or altered facilities are constructed to be accessible to individuals with disabilities. Businesses that do not provide goods or services directly to the public, such as commercial facilities like office buildings, factories and warehouses, are only subject to the ADA’s requirements for new construction and alterations and have to ensure any newly built or altered facilities are made to be accessible.
Business have to make “reasonable modifications” in their usual practice when it is necessary to accommodate customers who have disabilities. Typically accommodations involve making minor adjustments in procedures or providing additional assistance to a customer with a disability.
When? For reasonable modifications and accommodations- anything that would result in a fundamental alteration – a change in the essential nature of your business – or would cause a “direct threat” to the health or safety of others is not required.
Businesses have to remove physical barriers in existing facilities to improve accessibility where it is “readily achievable”- when it can be easily accomplished, without much difficulty or expense – to do so. Barrier removal is an ongoing obligation and the determination of whether barrier removal is “readily achievable” is usually on a case by case basis.
How? The ADA does not explicitly state what each business must do in every situation and leaves discretion to the business to determine what is reasonable based on how the business operates and what kind of accommodation the person needs because of his or her disability. Similarly, what a business has to do to communicate effectively with customers with disabilities varies based on the business. What is required to communicate effectively when discussing a loan application at a bank or buying a house will likely be different from what is required to communicate effectively at a gas station.customer shopping with assistance
An important and often disregarded factor of ensuring success is widespread and continuous training for staff. A business may have great written policies but if the staff who deals directly with the public is not aware of the policies or does not know how to implement them, a business can run into an array of issues. Business should incorporate training about the requirements of the ADA for their staff so they understand the obligations and are aware of the role they play in ensuring individuals with disabilities are included in everyday activities and throughout the community.

Litigation – Fair Housing Reasonable Accommodations – Hey Mr. Landlord, please can you make one little change so I can live in my home?

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Last month, Disability Independence Group filed two cases, one on behalf of a woman who is blind, and another case on behalf of a veteran who had a massive heart attack and needed a simple accommodation.  Instead of allowing a simple and easy accommodation, the landlord decided to find some way to evict them.   Many landlords believe that the terms and conditions of the apartments they rent are not subject to modification – it’s “take it or leave it.”  But the Fair Housing Act requires landlords to make modifications to rules, policies or procedures so that tenants with disabilities can have the same opportunities to live in a home and in an integrated community.

BLIND AND WITHOUT A PATH – REID V. CRYSTAL LAKES

Debra Reid is an elderly woman who became blind as a result of a side effect of a medication for headaches.  For the past five years, she has learned how to become independent, including using a white cane, and she uses the county’s paratransit system to go to areas throughout the city.   Even though the landlord knew that Ms. Reid was blind, they would always give her lease, notices, and other materials in print to sign, and tcrystal lakes apartmenthen she would ask her neighbor to read it to her.

Upon using the sidewalk and path of travel, Ms. Reid would use her cane to determine if a car was blocking her path of travel.  Often, vehicles would block her access from her unit to the parking lot where she would have paratransit pick her up.  The neighbors that would park there would yell and would harass Ms. Reid when she exited her home and attempted to find a way to reach the paratransit vehicle.

Ms. Reid went to the property manager for Crystal Lakes and asked her to block the one spot in front of her path of travel so she could get access to the paratransit vehicle.  She even offered to pay to have the space painted so other vehicles would not park in that space.  The employee of Crystal Lakes refused the accommodation and advised Ms. Reid to call the police if neighbors were harassing her about their vehicles.  She did, and still there was no help.

Finally, Ms. Reid contacted Disability Independence Group and Housing Opportunities Project for Excellence for help.  However, upon receipt of assistance, the landlord agreed to provide her with a path of travel but claimed that she had vandalized the vehicles with her white cane when she attempted to get to her car!  In addition, the landlord decided not to renew Ms. Ried’s lease for another year because they claimed to no longer accept her rent subsidy.  Miami-Dade County does not permit landlords to discriminate based upon the renter’s source of income.  As such, while the termination was due to the Ms. Reid’s request for accommodation, the proffered reason by the landlord was also discriminatory.

HEART ATTACK AND NO WAY TO GO HOME – PEREZ v. F.C.D.

Until April 5, 2015, Fabio Perez was an active man and veteran.  He suffered a massive heart attack while in the hospital undergoing a minor procedure and almost died.  His heart was so weak that he had an external defibrillator installed.  He could hardly walk without assistance or an assistive device.

Mr. Perez lived on the second floor of the apartment complex.  When he first moved in, the landlord asked if Mr. Perez could climb stairs, and he advised Mr. Perez that the elevators were only used for moving in and moving out.   The reason why the landlord did not have the elevators operating all the time was because the elevator company wanted to enter an agreement for $500 a month to maintain and repair the elevator and the landlord just did not want to spend the money.

After his heart attack, the landlord went to the ICU to collect his rent, and Mr. Perez was required to give his landlord his ATM card and PIN# so his landlord could withdraw money for the rent. Thereafter, Mr. Perez asked his landlord to make sure the elevators were turned on when he returned.  His landlord said no.  Thereafter, on April 29th, Mr. Perez got a letter from his doctor explaining that he could not use the stairs, and he called his landlord saying that he had a letter to prove he cannot use the stairs and requested that the elevators be turned on.  Again, his landlord said he would not turn on the elevators.

Mr. Perez contacted Disability Independence Group and asked for help.  Matthew Dietz contacted the landlord who assured that the elevator was always working, but when Mr. Perez was discharged from the hospital on May 8th, the elevator was not working.  The elevator was finally turned on May 13th.

While he was hospitalized, Mr. Perez hired a housekeeper to clean his house and feed his cat.  However, two days following his return, the landlord went to see Mr. Perez and demanded that he sign a new lease which ended his tenancy within a few months and included new conditions, limitations, and charges.  When Mr. Perez refused to agree, the next day, the landlord inspected the apartment for the first time and brought Mr. Perez’s neighbors to the inspection. The landlord moved and looked underneath furniture and cited Mr. Perez for having an unkempt apartment and for the presence of roaches.

This caused so much stress for Mr. Perez that he was required to go back to the hospital via ambulance.  While he was in the hospital, the landlord commenced eviction proceedings.  DIG is defending Mr. Perez and prosecuting the Fair Housing case on his behalf.

Disability: The Market You’re Missing: Incentives for Business

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By: Rachel Goldstein

Recently the Small Business Committee of the Coral Rachel Goldstein Gables Chamber of Commerce presented a seminar ‘Disability: The Market You’re Missing’. I was one of several panelists at the seminar who explained to small businesses how to best serve customers, clients and employees with disabilities. As an attorney, most of the questions directed to me were about the legal obligations of businesses with the underlying theme “What can I do so I do not get sued?” While that is certainly a loaded question, I am going to write a three-part series addressing some of the most commonly asked questions by businesses.

Oftentimes people as well as businesses approach things by thinking ‘what is in it for me?’ so I am going to start there. Individuals with disabilities are potential customers like everyone else however they are frequently overlooked by businesses trying to bring in new customers or develop their business. People with disabilities have often been excluded from everyday activities like shopping at a grocery store and going to a restaurant with friends and want to frequent businesses that welcome customers with disabilities as well as those that employ individuals with disabilities.

Businesses that not only comply with the Americans with Disabilities Act (ADA) but are welcoming and have features that are usable by individuals with disabilities will get new customers who become repeat customers.

In addition to the potential for new customers, there are tax incentives for businesses to help them cover the costs of accommodations and those costs associated with making the businesses accessible. There is an annual tax credit for small businesses that make their businesses accessible or improve accessibility for persons with disabilities (IRS Code Section 44, Disabled Access Credit) and there is an annual tax deduction for businesses of all sizes for expenses incurred to remove physical, structural, and transportation (barriers in their vehicles) for persons with disabilities at the workplace (IRS Code Section 190, Barrier Removal).

Small businesses that in the previous year earned a maximum of $1 million in revenue or had 30 or fewer full-time employees are eligible for the tax credit. The tax credit is available every year and can be used by small businesses for costs such as those incurred from obtaining sign language interpreters for employees or customers who are deaf or hard-of-hearing, printing materials in accessible formats, purchasing adaptive equipment and in the modification of equipment or from removing barriers by widening a doorway or installing a ramp. Businesses of all sizes may take advantage of the tax deduction, which is also available every year, and can be used for a variety of costs to make a facility or a vehicle owned or leased for use in the business more accessible to and usable by persons with disabilities. Examples of expenses that the tax deduction can be used for include those associated with providing accessible parking spaces, ramps and curb cuts and providing telephones, water fountains, and restrooms that are accessible to individuals who use wheelchairs.

For more information on tax incentives for businesses to help cover costs of accommodations and to make their businesses accessible for people with disabilities, visit http://www.dol.gov/odep/ietoolkit/publications/186.pdf.

Panelists Will Beckham, Bonnie Blaire, Rachel Goldstein, Brenda Lampon and Lieutenant Colonel Tony Colmenares pose for a picture at the Coral Gables Chamber of Commerce seminar.
Will Beckham, Bonnie Blaire, Rachel Goldstein, Brenda Lampon and Lieutenant Colonel Tony Colmenares.