Pathway for Access
Dec. 21, 2013
Woman’s Lawsuits Target Businesses Where Wheelchair Use Hindered
By Peggy Heinkel-Wolfe / Staff Writer
Peggy Heinkel-Wolfe / Staff Writer Denton Record-Chronicle
Published: 21 December 2013 11:48 PM
Jaime Blanton says she just wants access.
To public restrooms and romantic dining areas on upper floors; through aisles cluttered with so much merchandise that she can’t maneuver her wheelchair.
So Blanton has turned to a place where her access has been unhindered: federal court.
Blanton, 33, of Denton, has filed nearly 20 federal lawsuits in North Texas since 2009, including 11 against national and local businesses in the city, saying she was denied access to some or all of the facilities because she is in a wheelchair. She has also filed suit in at least one other state.
“I don’t think anyone can argue that access has value,” said Blanton, a local university employee who serves on the Denton Mayor’s Committee on People With Disabilities. “The challenge is very few of us speaking out about it.”
The lawsuits have rocked members of the local business community, some of whom were unaware that they were vulnerable to federal litigation. Under state law, businesses generally aren’t required to make accessibility changes until they renovate their property. But under federal law, if those changes are “readily achievable,” businesses need to show progress in making them, legal experts say.
La Azteca Meat Market made the changes to its store along Interstate 35E soon after a lawsuit was filed in August, according to Angelica Ortega, spokeswoman for the business.
“It caught us by surprise,” she said.
After his business was sued in August, Charlie Nolet, owner of The Loophole Pub on the Square, started working with a consultant and contractor on what it will take to make the 150-year-old building accessible.
Although he doesn’t have final bids, the early estimates concern him. The scope of work would trigger other requirements with the city, such as asbestos abatement, and would affect how he runs his business. To do the renovations, he would have to close the pub for at least 10 days, likely more, at a business loss of $2,500 to $4,000 per day. The preliminary estimates for the renovations and business disruption have reached $75,000, he said.
“I’m genuinely worried I’ll lose the business,” Nolet said.
Blanton, who was diagnosed with cerebral palsy as a baby, says federal court is her only remedy — there is no 800-number or regulatory body to take complaints when a business does not comply with the federal Americans with Disabilities Act of 1990.
A few federal judges, however, have deemed some lawsuits abusive, questioning cases in which a single plaintiff may have filed 100 or more lawsuits against places he or she had no intention of visiting.
Prior to filing suit in Denton, Blanton filed six suits in 2009 against businesses in Richardson, Irving and Fort Worth. In September 2010, she filed federal lawsuits against three chain restaurants and two local restaurants in Denton as well as against the owner of the shopping center that houses Hobby Lobby and Big Lots near the Golden Triangle Mall. All those cases have been settled, federal court records show.
In June 2013, she filed against the new Walmart on West University Drive, citing problems with the bathroom. That case was settled in August, about the same time that she sued La Azteca, the Loophole and two other businesses.
Her latest cases allege discrimination at the Loophole, La Azteca, Goody Goody Liquor, which owns Buckeye Liquor in Lake Dallas, and Retail Plazas, owner of Denton Center on University Drive. The suits have been filed in the Eastern District of the U.S. District Court in Sherman.
A spokeswoman for Retail Plazas declined to comment, and calls for comment to Goody Goody Liquor were not returned.
Drafted into service
Blanton was introduced to the power of lawsuits in seventh grade in Georgia, when she was sued by one of her teachers.
The teacher’s classroom was in a portable building. In order to accommodate Blanton, the class needed to be held in the main building. The teacher sued, claiming that the other students’ education was being compromised by the move.
Blanton said she was singled out in class by the teacher for forcing the change, and the teacher later left the district.
As an undergraduate at Texas Christian University, she learned the power of persistence. She had looked forward to establishing her independence by attending the university 1,200 miles from her parents’ home. But her first year was miserable, she said, because so much of the campus was inaccessible to her.
She wrote up a list on a sheet of legal paper and wheeled up to the chancellor’s office, without an appointment, to talk. She told him she wasn’t planning on coming back to school unless the university could fix what was on the list.
Chancellor Michael Ferrari was polite but reluctant at first, she said. The list was long. Undeterred, she challenged him to try to get around the campus in a wheelchair. To her surprise, he tried.
He called her back to his office and asked her to make a deal with him. Stay in school, he told her, and while he wouldn’t get everything on the list done in a year, he pledged to have it done by the time she finished her journalism degree.
When Blanton crossed the stage at graduation, Ferrari was there to hand Blanton her diploma. Tucked inside was the list she wrote as a freshman. He had made his own notes alongside hers, including the cost of some of the projects that were completed.
“He wrote ‘thank you’ at the bottom,” Blanton said.
Living with disabilities
Blanton currently serves on the mayor’s committee, which meets regularly and works hard to make Denton a more inclusive community. An estimated 50 million people in the U.S. — or about 1 in 5 Americans — live with a disability, according to the Centers for Disease Control and Prevention.
And anyone, she points out, can become disabled at any time.
Blanton’s cerebral palsy means daily tasks take more time. Because her brain sends signals to the wrong place, her muscles can be tight as her body tries to figure out what she wants to do. It took her five years to learn to type. The neurological disorder affects all aspects of her busy life as a working mother, whether speaking, putting on makeup, zipping shoes or buckling her daughter into her car seat.
Once, when her daughter was much younger, they were on a shopping trip that went too long. When she asked a woman nearby for help buckling her tired, crying baby into the car seat, the woman refused.
“She told me, ‘I would have thought about that before I had a child,’” Blanton said.
While that situation was extreme, Blanton said she works hard to be as independent as possible. Like many people with disabilities, she said she sometimes is forced to ask for help when she would rather not. Sometimes, she faces additional scrutiny because of it.
“It’s something we deal with every day,” Blanton said.
Fortunately, that day in the parking lot, a man overheard what was happening, admonished the unhelpful woman and followed Blanton’s directions on securing her daughter for the drive home.
The Loophole, facing Hickory Street on the Square, is substantially the same since the building was renovated in the 1980s. The earliest records of the building’s original construction date before 1860, making it one of the oldest buildings on the Square. After a fire on the second floor in 1926, the building was repaired as a one-story structure. During its last renovation more than 30 years ago, the original brick, floors and pressed-tin ceiling were preserved as much as possible.
The interior still has the old, New Orleans-style mercantile look it had when it was open as Ellington’s in the 1980s. Many dining seats, and the restrooms on the upper level, are accessible only by stairs. To accommodate patrons who cannot use the stairs, Nolet said he has an agreement with Beth Marie’s Old-Fashioned Ice Cream and Soda Fountain next door to use its restrooms. He also has regular patrons he has carried up the stairs himself.
Blanton sued the pub after co-workers went for a celebration after work one day and she couldn’t join them.
Ever since he was served with the lawsuit, Nolet has been working with a contractor and consultant to determine how the building might be made more accessible. They are weighing limited options for the restrooms and a wheelchair lift, Nolet said.
Installing the lift will take out a server station, Nolet said, triggering the need for other work to the building’s computer networks, cabinet storage and perhaps part of the bar and table areas.
“I will have to rethink the way we do business,” Nolet said.
A veteran of the U.S. Navy who was discharged after he was injured in a rescue mission, Nolet says he understands the need for accommodations since he, too, has a disability. As a businessman, however, he worries about the down time. He employs 20 people, most of whom he suspects cannot afford to go without their tips and paychecks while the building is renovated.
While he worries whether he can afford the renovations, he’s almost certain that if the case goes to court, he’ll lose the business.
“I know the ADA laws weren’t meant to push people into that,” Nolet said.
He wonders about other small businesses, particularly those downtown, and whether the risk could discourage investment in the old buildings that have become part of Denton’s signature charm. Generally, Texas law and most local building codes don’t require businesses to make improvements in accessibility until they renovate. But, the federal law is, and always has been, enforceable by individuals with disabilities.
Nolet’s attorney, Dennis Engler, said in the Loophole’s case, they maintain renovations outlined in the lawsuit aren’t required under the law. He said he has been pleased how swiftly his client has worked to gather information that can address the other question of the lawsuit: whether the renovations are “readily achievable.”
Many other businesses in Denton could end up in court as Nolet and others have, he said.
“You don’t want to be sitting in that chair,” Engler said. “Nobody wants to be.”
Kenneth Shiotani, an attorney with the National Disability Rights Network, a nonprofit advocacy group based in Washington, D.C., said the law was written to give businesses a reasonable amount of time to make needed changes. Governments have less latitude making public buildings accessible, he said.
Generally, a business must work first to address getting into the building, Shiotani said. Often that means widening doorways, lowering thresholds and replacing stairs with ramps. Then, businesses must make interior spaces fully accessible. That often requires widening aisles and lowering a service counter. Finally, businesses with public restrooms must make those spaces accessible, too, Shiotani said.
The law gave businesses a lot of time to make the changes when it was first adopted 23 years ago. The law also makes exceptions for alterations that prove too costly, Shiotani said.
“But businesses can’t sit and do nothing,” he said.
The Denton Chamber of Commerce has not gotten calls from business owners looking for help in evaluating the accessibility of their spaces, but will evaluate the need, according to President Chuck Carpenter. Nolet said he wouldn’t have hired an expert to evaluate his pub before, since he believed he was compliant with the law. But he is continuing to evaluate now that the lawsuit has been filed. He wants to limit his exposure to future risk.
Engler said federal lawsuits are expensive, with an attorney’s retainer likely to start at $10,000. If the suit isn’t settled quickly, legal costs alone can escalate to two to three times that amount.
Speaking for La Azteca, Ortega said the company didn’t believe it was discriminating against its customers until the business brought in an expert who pointed out things the company could do.
“We have other regular customers that come in wheelchairs and our staff is happy to help,” Ortega said. “But we understand that others may want to feel more self-sufficient and want things to be conducive to that.”
La Azteca had depended on government inspectors to alert the company to problems when the owners bought the building. Denton’s are very thorough, she said.
“We got a C.O. [certificate of occupancy], so as far as we knew, we were compliant,” Ortega said. “Unfortunately, those of us who are lucky, we don’t always see — or we don’t realize — what isn’t accessible.”
Businesses are supposed to get a review from a Texas registered accessibility specialist 30 days after they get a certificate of occupancy, according to Kurt Hansen, the city’s building official. Then, they have a year to make any recommended changes.
Sometimes, if a city inspector sees something obvious, they’ll tag it during construction to save the developer money over the long run, but none of the city’s inspectors is a registered accessibility specialist, nor do they have to be, he said.
Ortega said her company would have appreciated a letter alerting them to the problem, but she understood why Blanton and her attorney didn’t try that approach.
“Some businesses might not respond to a letter,” Ortega said.
Conflicts over filing suit
Blanton is not a serial litigant — she’s suing to have the barriers removed, her attorney, Ed Zwilling of Alabama, told the Denton Record-Chronicle.
Blanton has settled her prior lawsuits with confidentiality agreements, which means she cannot reveal the terms. She said she does not profit from them, but her attorney requests payment of his fees and court costs through the legal system. Details of those payments are likewise not available in court records, though payment of legal fees is standard in the settlement of many civil lawsuits.
Zwilling said he has helped many clients like Blanton get businesses to make necessary modifications since Congress first passed the law more than 20 years ago. He said he has written many letters on behalf of clients but finds that accessibility problems in some public buildings and businesses are large enough to warrant filing suit.
“It’s rare that you file just one suit; there are often several,” he said.
Serial litigation under the Americans with Disabilities Act has made headlines in other communities in recent years. Plaintiffs have been ordered to pay court costs. Others have been barred by federal judges from filing lawsuits after the boilerplate language of the lawsuits, the frequency of filing, and the plaintiff’s testimony indicated that they either weren’t patrons of the business or didn’t intend to return to the business they were suing.
Shiotani, of the National Disability Rights Network, said that he is conflicted about such litigation, which remains a necessary enforcement tool.
Some attorneys have called for reforms to the law that don’t diminish legitimate complaints. “Safe harbor” provisions could require that a potential plaintiff’s attorney write a letter first, triggering a time frame within which a business must come into compliance before facing a federal lawsuit.
California adopted such safe harbor provisions along with improvements to its building codes in 2012.
Blanton recognizes that the lawsuits are controversial, but she feels it’s important to do the right thing. Businesses can get tax breaks and grants to make the needed changes if they plan ahead, she said.
Blanton says she’d prefer to be like others, to privately enjoy her life in Denton and raise her family.
“It’s very uncomfortable for me,” Blanton said. “But if you believe in it, you see things to the end. That’s how change gets made. Being a change agent means being unafraid of what might come.”
PEGGY HEINKEL-WOLFE can be reached at 940-566-6881 and via Twitter at @phwolfeDRC. http://www.dentonrc.com/local-news/local-news-headlines/20131221-pathway-for-access.ece