In a string of lawsuits dating back to 1998, Hanama‘ulu resident Juliette Pasion has attempted to raise awareness of the federal Americans with Disabilities Act (ADA), which was enacted in 1990. Pasion has filed over 100 suits against various businesses
In a string of lawsuits dating back to 1998, Hanama‘ulu resident Juliette Pasion has attempted to raise awareness of the federal Americans with Disabilities Act (ADA), which was enacted in 1990.
Pasion has filed over 100 suits against various businesses on the island in an effort to gain access to them. As of Wednesday, over half of the lawsuits have been settled.
“The purpose of the suits is to put businesses on notice that they have to come into compliance,” said Bruce F. Sherman, an O‘ahu attorney representing Pasion.
He added, “The intent (of the lawsuit), purely and simply, is to bring Kaua‘i into compliance with ADA. The ADA is the most significant civil-rights legislation in the last 20 years.”
The majority of Pasion’s claims revolve around a lack of accessible parking, restrooms and entry doors at these establishments.
“It’s not unusual for me to hear people say, ‘Gee, I didn’t see her (Pasion), or she never even came into my business,'” said Kaua‘i ADA Coordinator Christina Pilkington. “If you have a business, a restaurant or an office that is not accessible, how would a person with a disability even get in there so you could see them? They couldn’t.
“So it’s really important to provide accessible parking, accessible route, accessible entrance, and whatever goods and services that you offer to the general public (must be accessible to) people with disabilities.”
Title III of the ADA covers “privately owned places of public accommodation” and “commercial facilities” such as restaurants, shops, office buildings as well as warehouses.
Private clubs that do not offer facilities for patrons; churches; private homes used exclusively as residences; and multi-family housing are not covered by Title III.
“The (U.S.) Department of Justice that enforces Title III in the private sector has always indicated that ignorance is no excuse,” said Bruce C. Clark, the president of Accessibility Planning and Consulting, Inc. on O‘ahu. “I don’t see how any businessman could not know about the ADA. They just need to be more proactive versus reactive when they get sued. They could eliminate a lot of these lawsuits by doing a lot of things before that happens.”
According to ADA law, “public accommodations must provide goods and services in an integrated setting, and must eliminate unnecessary eligibility standards or rules that deny individuals with disabilities and equal opportunity to enjoy their goods and services.”
“I knew of the law, but not the small details of it,” said an anonymous business owner with close ties to the lawsuits. “I bet if you poll 100 average businessman, a majority of them wouldn’t know the major details of that law.”
Under federal law, any facility constructed after Jan. 26, 1993 must be ADA-compliant and accessible for persons with disabilities.
The ADA offers a design guideline for new and existing facilities.
In the case of facilities existing before 1993, owners are required to remove architectural and communication barriers that would not allow a disabled person to enjoy those goods and services.
These facility owners are required to do so when the effort is deemed “readily achievable,” i.e., accomplished without much difficulty or expense.
“Readily achievable” is determined on a case-by-case basis in light of the resources available.
A few factors that are considered in access barrier removal are the nature and cost of the action needed, and the overall financial resources of the facility, or parent company in the case of a franchise.
Installing ramps, making curb cuts in sidewalks and entrances, repositioning shelves, widening doors, offering an alternate accessible path, and creating designated accessible parking spaces have been deemed “readily achievable” by enforcers of the ADA.
“You have to identify the barriers, put a cost to remove those barriers, and you do a comprehensive plan over a period of time, whether that is five or 10 years, that is acceptable as long as you follow that plan,” said Clark.
“The Department of Justice in the rules and regulations of Title III state that if you have a comprehensive plan, they will consider that as being in ‘good faith’ if you follow your plan diligently,” Clark concluded.
Business Editor Barry Graham can be reached at 245-3681, ext. 251, or mailto:bgraham@pulitzer.net.
