Thursday, February 19, 2009

Speaking of Handicap Violations

The Traveling Wheelchair blog recently wrote a post about the inaccessibility of the South End Branch library.

"Parking is available on the street; yet there are no handicap parking spaces in sight. Tony, Kevin and I approached this small library to find that there is a sloped cement walkway leading to the front entry door but it is not accessible because there is a 10″ inch threshold at the door that prevents wheelchair access.

Tony went inside and spoke with a nice librarian. She explained that requests have been made to make this library accessible; but it has not been done due to lack of finances. She told him that she feels sorry for those in wheelchairs that she has to turn away. She told a story of one man in a wheelchair that was so desperate to enter that he transferred himself from his wheelchair to a chair right inside the door. This is a safety and liability hazard so it is good he was not injured."
Keri Rodrigues also did a blog post on this issue shortly after The Traveling Wheelchair posted.


By operating this library branch, the City of Fall River is in violation of the Americans with Disabilities Act which opens the city up to lawsuits. The worst part is that the city doesn't even own this inaccessible building, they rent it, and the city just signed another year long contract for the space.

Click here to view the 2008-2009 contract (I believe you have to download it view). Please not that Fall River Corporation Council, Arthur Frank, signed the lease, giving his legal approval for the city to rent a space that is in violation of the Americans with Disabilities Act....more excellent legal oversight.

The recent contract has the city paying $18,000/year to rent this legally violative space. Under last year's contract the city was paying $16,320. So the city is actually paying more this year for this liability.

14 comments:

Anonymous said...

and who exactly is Sakonnet Managment?and why no amount listed on the city website-contracts awarded??

Contract #09-137
Lease for South Branch Library
Sakonnet Management P.O. Box 38 Tiverton, RI 02878

W.J. Bloggah said...

Aren't the Karam's in Tiverton? Curiouser and curiouser?

shamrock said...

The lack of $$ amount on the RFP info on the city website is what got me to look into this. I was also suspicious that the Karam's were Sakonnet Management but I don't think they have anything to do with this. I believe Sakonnet is run by Joseph Lach, the president.

This needs to be remedied because it is ripe for a lawsuit.

shamrock said...

I sent a complaint in to the Massachusetts Office on Disability. Any suggestions on other offices I should send this to?

Someone who knows said...

You need to check your facts here. the ADA doesn't apply to this building because of its age and (predating the ADA) and because the building was not constructed by, on behalf of, or for the use of a public entity, even though it is used by one now. And because the city already maintains one library that meets ADA standards, you wouldn't have much of a case. Otherwise every door of this type, with a raised entry would need to be redone. That said, the city should have the common courtesy to put the branch library in an accessible place. In any case, all that the landlord needs to do to make this building accessible is to install an automatic door, and create a small concrete ramp leading to the front door, which would cost less than $2000, which is fair given the increase in rent.

The rent increase is a little unjustified, however. The city was paying $7.56 sq/ft before, which is fair in this market for that type of building with no accessibility or private parking. To raise that to $8.33 in these tight times is not called for because:

1. The landlord is going to have a hard time getting that amount from another business.

2. There is a significant vacancy rate for office space in the city right now, and rents have been going down.

shamrock said...

As someone who ALSO KNOWS.......

Before I address your contentions. Do you really think it is ok for the city to annually release a space that doesn’t allow equal access to the handicapped.

Americans with Disabilities Act Sec. 12182. Prohibition of discrimination by public accommodations:

(a) General rule
No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.

You Said: You need to check your facts here.

I Say: Ok let’s do this

You Said: the ADA doesn't apply to this building because of its age and (predating the ADA) and because the building was not constructed by, on behalf of, or for the use of a public entity, even though it is used by one now.

I Say: Please show me the exception to the ADA that allows a public facility to avoid handicapped accessibility law based on the fact that it was built before the 1990, because I believe that this may be a misconception. I know there are exceptions for historic buildings where the upgrade would ruin the historic nature of the building but that certainly doesn’t apply here. Also, the city just signed a new one year lease on the property so the argument could be made that we accepted the inaccessibility in Oct 2008 not prior to 1990 as you may contend. But if you have a law proving me wrong please share because it seems like it would be contradictory to the spirit of the law.

You said: And because the city already maintains one library that meets ADA standards, you wouldn't have much of a case.

I Say: Holy Crap! That isn’t even constitutional. A similar argument to the one you are making could be – well there is one library that allows black people and white people so it is ok that the other libraries only allow white people.

You Said: Otherwise every door of this type, with a raised entry would need to be redone.

I Say: Every door of this type which prohibits access by the physically handicapped to Fall River public facilities should be redone

You Said: That said, the city should have the common courtesy to put the branch library in an accessible place. In any case, all that the landlord needs to do to make this building accessible is to install an automatic door, and create a small concrete ramp leading to the front door, which would cost less than $2000, which is fair given the increase in rent.

I Say: YAY! I agree

Someone who knows said...

Shamrock,

To address your points:

I DON'T think it is alright for the city renew a lease annually for a space that doesn’t allow equal access to the handicapped. I think that it's common sense that any RFP written these days regarding a lease for a place of public accommodation should include a clause that no facility will be allowed to bid if it doesn't meet new construction or alteration accessibility standards.

And believe me, I love the digging and the time you put into your posts, but trust me that the physical building that houses the South Branch of the public library does not fall under the ADA. So I agree with you in principal, but don't think that anyone has the legal right to force this building to make alterations based on the fact that it is grandfathered (like many other private buildings, even ones used for public purposes) under the ADA.

You're quoting the general law, which is correct, but the key phrase in that law is the term "public accommodation," which has a very specific definition under ADA (in Title III of the ADA)

The physical accessibility requirements of the ADA have been further clarified by Accessibility Guideline (ADAAG) regulations issued by the DOT and DOJ. The ADAAG regulations apply to Title II buildings (public facilities, which 1310 So. Main street is not) and title III buildings, (i.e. new construction of places of public accommodation or commercial facilities, and alterations of places of public accommodation or commercial facilities done after January 26, 1992, which 1310 So. Main street would fall under if it were built or modified after this date)

The Title III also specifically states that a new lease does not constitute an alteration to the physical building.

There is a huge difference under the ADA of public versus private facilities. Private facilities constructed before the deadlines established in the original ADA in 1990 (even ones leased to to public entities) do not have to comply unless the building undergoes an "alteration."

What I mean about the main branch being accessibility is that there is an exception to the ADA is that
"Separate programs are permitted where necessary to ensure equal opportunity. A separate program must be appropriate to the particular individual." This means in effect that even if the South Branch building was owned by the city, if everything that is available at the South branch is also available at the main branch of the library, then the ADA is met (this is known under the ADA as a 'reasonable accommodation')

I hope this clarifies...

Someone who knows said...

Here's a better question, Shamrock:

Why is it that Fall River's RFPs are not listed in full on the City's web site? Does the city not own a scanner? Is the cost of data for hosting .PDF or .DOC files too burdensome for the Fall River to handle? I'm a little confused, but isn't it standard operating procedure in 2009 to solicit business on the internet to increase the likelihood of getting us taxpaying suckers the most bang for our bucks? So what rationale could there be against doing this, other than keeping it as secretive a process as possible to hook up FOC/FOMs (Friends of Corriea/the Mayor). Maybe there should be a study that cross checks winning bidders and campaign contributions. Any takers?

shamrock said...

I was citing general aspects of the law...it was mostly to capture the spirit of the law. Which, again, this situation seems to violate and I plan to right this wrong. Yet, I still contend that this falls under Title III 1.2 definitions of public accomodations which: http://www.ada.gov/taman3.html
1) is an entity must be private and it must (sakonnet management)
2)own, lease, or lease to (Fall River)
3)a place of public accomodation (the library)
WHAT IS A PLACE OF PUBLIC ACCOMODATION?
1) A place of public accommodation is a facility whose operations --
Affect commerce; and is a
2) Places of public display or collection (e.g. , museums, libraries, galleries)

You said:
"I agree with you in principal, but don't think that anyone has the legal right to force this building to make alterations based on the fact that it is grandfathered (like many other private buildings, even ones used for public purposes) under the ADA."

Again, please point me to the law that says buildings can be grandfathered in, because I have spent hours searching and cannot find it.

You offered a quote that states "Separate programs are permitted where necessary to ensure equal opportunity. A separate program must be appropriate to the particular individual."

To finish your quoted excerpt, the law and examples offered are as follows:

II-3.4100 Separate programs.
A public entity may offer separate or special programs when necessary to provide individuals with disabilities an equal opportunity to benefit from the programs. Such programs must, however, be specifically designed to meet the needs of the individuals with disabilities for whom they are provided.

ILLUSTRATION 1: Museums generally do not allow visitors to touch exhibits because handling can cause damage to the objects. A municipal museum may offer a special tour for individuals with vision impairments on which they are permitted to touch and handle specific objects on a limited basis. (It cannot, however, exclude a blind person from the standard museum tour.)

ILLUSTRATION 2: A city recreation department may sponsor a separate basketball league for individuals who use wheelchairs.

HOW IS NOT ALLOWING THE HANDICAPPED ACCESS TO A LIBRARY BRANCH OFFERING EQUAL OPPORTUNITY?

In rebuttal to your statement that "This means in effect that even if the South Branch building was owned by the city, if everything that is available at the South branch is also available at the main branch of the library, then the ADA is met (this is known under the ADA as a 'reasonable accommodation')" Your contention seems in DIRECT contradiction to Brown v. Board of Education which held separate but tangibly equal facilities were not ok for segregated races. The Supreme Court indicated that this construct perpetuated a sense of inferiority....among other things.

Someone who knows said...

You're talking about separate but equal in regards to segregation. That has nothing do to with the ADA. Reasonable accommodation means that if the city can offer at point A with accessibility the same services at point B without accessibility, then the ADA is met. This is not maintaining one space for disabled persons and another for non-disabled without mingling.

As for the grandfathering, read through the law. Title III applies to new construction and alterations made after that date. Where do you see the accessibility building regulations applying to older buildings? That's what the grandfathering refers to. There's not a specific sentence that says certain buildings are exempt. It goes the other way. The law is very detailed as to what buildings it applies to. Those ADAAG only for modifications in those two cases, otherwise any building where the public is allowed (any place of business) would have to comply.

Someone who knows said...

From the Dept. of Justice:

Title II requires city governments to ensure that all of their programs, services, and activities, when viewed in their entirety, are accessible to people with disabilities. Program access is intended to remove physical barriers to city services, programs, and activities, but it generally does not require that a city government make each facility, or each part of a facility, accessible. For example, each restroom in a facility need not be made accessible. However, signage directing people with disabilities to the accessible features and spaces in a facility should be provided. Program accessibility may be achieved in a variety of ways. City governments may choose to make structural changes to existing facilities to achieve access. But city governments can also pursue alternatives to structural changes to achieve program accessibility. For example, city governments can move public meetings to accessible buildings and can relocate services for individuals with disabilities to accessible levels or parts of buildings. When choosing between possible methods of program accessibility, however, city governments must give priority to the choices that offer services, programs, and activities in the most integrated setting appropriate. In addition, all newly constructed city facilities must be fully accessible to people with disabilities. 28 C.F.R. §§ 35.149, 35.150, 35.151, 35.163.

shamrock said...

Do you know when the city moved into this facility? Was it prior to 1990?

Someone who knows said...

I'm not sure when this building was first occupied. But accessibility should be a clause in the lease if it renews annually.

After further review, this building would have to comply with the 'barrier removal' provisions of the ADA, because that section applies to all places of public accommodation, regardless of date built. I found a section that states if the threshold/only step is less than 6 inches, a small ramp (of any material) would have to be placed there. The door would have to be modified as well so that it is easily operable by anyone with physical disabilities (including people without use of their hands). Usually this is done by an automatic door, since it works for just about anyone.

Someone who knows said...

Looks like 1972 from the Fall River Public Library website.

Oh and there are some more provisions such as the bathroom being accessible and hallway, aisle width requirements, etc. But nothing major. All in all, we're not talking expensive upgrades. And it is a shame that this stuff wasn't taken care of a long time ago.