26 05 2008

Advocate for disabled not hesitant to sue for access

May 25, 2008

by Kathie Durbin

The Columbian

http://www.columbian.com/news/localNews/2008/05/05252008_Advocate-for-disabled-not-hesitant-to-sue-for-access.cfm

When Michelle Beardshear’s wheelchair is blocked by a too-narrow restroom stall, she doesn’t bargain or complain.

She lets her lawsuits do the talking.

Beardshear, 30, has been paralyzed since an auto accident on an icy road 12 years ago. Since April 2006, she has filed 15 lawsuits in Clark County under the 1990 Americans with Disabilities Act. So far, she and her Florida attorneys have settled 12, including a case against the city of Vancouver over the absence of curb cuts and accessible restrooms in city-owned buildings and parks.

She says she expects to keep winning, because the ADA is “black and white.” She carries a battered, marked-up bound copy of the law with her everywhere she goes.

“The legal test is whether my civil rights are being violated, whether my civil right are being discriminated against.”

A former star softball pitcher for Camas High School, Beardshear hasn’t walked since she suffered a broken vertebra in the 1996 accident. Her paralysis didn’t slow her down for long. She attended Clark College, earning a business degree, and went to work for Clark Public Utilities five years ago as a customer service representative. In 2005, she was named Ms. Wheelchair Washington, giving her a platform to advocate for stem cell research and on behalf of people with disabilities.

ADA advocate

Over the past two years she has become, by her own reckoning, the most effective advocate for the disabled in Clark County.

Her problems with the city started when she couldn’t get to bus stops because many sidewalks in her Cascade Park neighborhood lacked curb cuts.

“I wrote a letter to Mayor (Royce) Pollard,” she recalled. “I said, ‘I am an advocate, you are the mayor, let’s work together.’” She got a call back from Jim Jacks, a city employee responsible for answering citizen complaints. “He said, ‘Come and see me at city hall,’” Beardshear recalled.

But when she did, she said, she couldn’t get her wheelchair into the restroom stalls.

“It’s scary,” she said. “What are you supposed to do?”

Bob Bess, the city’s ADA compliance officer, said the city later agreed to address the curb cut issue and also remodeled the restroom stalls at city hall to make them accessible.

In 2005, while she was in New York City for the Ms. Wheelchair America contest, Beardshear met an attorney from Schwartz, Zweben and Slingbaum, a Hollywood, Fla., law firm that works with local attorneys to bring ADA lawsuits nationwide. “We had an immediate connection,” she said.

On her flight home, the airline lost her wheelchair. She put a call in to the law firm, which got her wheelchair back. And a working relationship was born.

Beardshear has her critics. They say her lawsuits punish governments and businesses while padding her lawyers’ bank accounts and her own, and that the money going to legal fees would be better spent removing barriers.

“From the litigation perspective, we’d much rather have our tax dollars go to improvements than to the payment of attorney fees in these lawsuits,” said Vancouver city attorney Ted Gathe.

“There was never the intention of, ‘Can you fix these issues?’ It began with a lawsuit,” said Dana Shumway, co-owner of an Izzy’s Pizza restaurant that was sued by Beardshear.

Beardshear has a quick retort for her critics: Every suit she has filed resulted from a problem she encountered firsthand.

“I don’t believe in ambulance chasing,” she said. “I live my life. I do the things I want to do. I don’t look for problems; that’s a sour life.”

What’s more, “I do not sue for money,” Beardshear added. “I sue for access.”

In fact, the ADA does not authorize monetary damages to plaintiffs. The $7,000 she has been awarded came under the Washington Law Against Discrimination. “Most of the damages I have received were in gratitude for not going to court,” she said.

Parks and parking lots

Beardshear’s suit against the city, filed in October 2006, demanded a long list of barrier removals and other changes at city facilities, including:

Accessible restrooms at Bagley, David Douglas and Central parks;

Proper striping of handicapped-accessible parking stalls at city hall and at the Vancouver Police Department administrative offices, where she said there were no accessible ramps and squad cars used to routinely park in the handicapped slots and block the main access route into the building.

An accessible restroom, a raised computer table, handrail ramps and other changes at the Vancouver Community Library building, which is owned by the city. Installation of curb ramps at numerous intersection on East Mill Plain Boulevard in the Cascade Park area.

It was Beardshear’s most contentious lawsuit and the only one in which she worked with the Florida nonprofit Access Now as a co-plaintiff. Access Now has brought nearly 1,000 lawsuits in at least 10 states against cities, hospitals, stores, sports venues, car rental agencies and restaurants, including class action suits against Arby’s restaurants and Dollar and Thrifty Rent-a-Car.

Last August, Beardshear won a settlement in which the city agreed to remove certain barriers within two years and to pay attorney fees of $43,000.

“I was deposed for five hours by the city,” Beardshear said. “The city so wanted to prove they were not in the wrong. They were trying to say I didn’t have standing. They wanted to prove my lawyer came up here and picked out the sites.”

For example, the city told her she lacked standing to demand access at Vancouver police headquarters because there was an accessible satellite police station — East Precinct — near her home in Cascade Park, even though the Evergreen station was the closest to her job.

But Beardshear has lived in Clark County all her life, and she knows the law. “To have standing, you have to be the disabled person, you have to have been to the place, and you have to have the intent of coming back,” she said.

The city did successfully challenge the standing of Access Now. “They have no members who live in city of Vancouver,” Gathe said.

Because Access Now was dropped as a plaintiff, some issues it wanted addressed, such as audible stoplights for the blind, also were dropped from the suit. But ADA compliance officer Bess said the city has installed audible signals at some intersections where citizens have requested them.

The city appears to be following through on the terms of the settlement, Beardshear said. “They are doing what they said they would do. They have done tremendous work in David Douglas Park. They have handicapped-accessible porta-potties, which is good enough for me.”

And the city has set aside $163,000 to add curb cuts at all but four of the intersections Beardshear cited in her lawsuit by the end of this year.

Rules misunderstood

Beardshear has had better luck with business owners, even though most claim ignorance when it comes to ADA access rules.

She has little sympathy for that argument. “People have had 18 years to voluntarily comply.”

One of her success stories was the suit she filed against three Muchas Gracias restaurants. “All three stepped up and made their changes before the lawsuit went into effect,” she said.

At the Muchas Gracias on East Fourth Plain Boulevard, the disabled parking stalls were inadequate and there was no ramp to the restaurant or to the restroom doors at the back of the building. The restrooms themselves were tiny.

“Before my attorney even came out, they said, ‘Please accept our apologies,’ ’’ she said. “When we met, they had an attorney present, an architect, an interpreter. The manager agreed to everything we asked for. They took out a wall and made a single unisex restroom to replace two tiny ones.”

At the Izzy’s Pizza on Mill Plain, cooperation came more slowly. Ownership of the restaurant changed after she filed her suit. The owners, Bob Brunelle and Dana Shumway, eventually agreed to remodel the women’s restroom to make it accessible, designated a wheelchair-accessible table and improved their disabled-parking stalls.

Brunelle said he had assumed that access issues were addressed when the restaurant underwent a major remodel in 1994, under its previous owner. Why didn’t the city building permit office check to make sure the building was ADA-compliant? he wants to know.

In fact, city officials say it’s up to building owners and their architects to make sure their new or remodeled buildings comply with the International Building Code, the standard for disabled access in Washington.

“The city is not a guarantor of the accuracy of building permits or of their compliance,” Gathe said.

Brunelle still isn’t convinced that he was required to do the remodeling. “Our lawyer said it would be expensive to fight it. We actually looked at closing the place down and renting a newer building.”

Instead, the restaurant reached a settlement with Beardshear in which it agreed to pay her attorneys $7,500 and make $8,000 worth of modifications at its Mill Plain restaurant. That’s not counting the $13,000 Brunelle and Shumway have spent on their own attorney and the services of consultant Wayne Yarnall.

“I’d rather spend that money getting things fixed than giving it to some lawyer who probably has enough money already,” Brunelle said. “If someone had come to us, we would have fixed it for a fraction of what we spent.”

But few businesses take steps on their own to remove barriers, said James Baker, director of Disability Resources of Southwest Washington. Most, he said, have to be prodded by the threat of litigation.

“We like to believe that most companies want to do that, but their bottom line is making money,” he said. “If it costs too much, people don’t seek out information. They wait until they’re sued.”

Beardshear makes no apologies for suing for access.

“It would be a perfect world if every place were accessible,” she said, “and by law, every place should be.”

Kathie Durbin can be reached at kathie.durbin@columbian.com or 360-735-4523.

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26 05 2008
» Advocate for disabled not hesitant to sue for access May 25, 2008 …

[…] Lawrence Solum wrote an interesting post today onHere’s a quick excerptBut few businesses take steps on their own to remove barriers, said James Baker, director of Disability Resources of Southwest Washington. Most, he said, have to be prodded by the threat of litigation. … […]

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