Episode 76: The Americans With Disabilities Act

Kyle Khachadurian: This episode of The Accessible Stall is sponsored by the law firm of Bizer & DeReus. Bizer & DeReus concentrates on increasing access for persons with disabilities and minority groups through litigation for a free consultation call Andrew Bizer at (504) 619-9999. Or email andrew [at] bizerlaw [dot] com. The attorneys in Bizer & DeReus are admitted to practice law in New York, Louisiana, Illinois, and Missouri, and often partner with attorneys in other States. The transcript for this episode is sponsored by Seamless Docs. SeamlessDocs is an e-signature and form automation platform that enables governments to go paperless and deliver better online services to citizens and staff.

Emily Ladau: Hi, I’m Emily Ladau.

Kyle Khachadurian: I’m Kyle Khachadurian.

Emily Ladau: You’re listening to another episode of the accessible stall.

Kyle Khachadurian: What are we going to talk about today, Emily?

Emily Ladau: This is ADA episode, the Americans with Disabilities Act episode that we have been trying to accomplish for. I don’t know since we started the podcast.

Kyle Khachadurian: Three years. Yes, it is finally here.

Emily Ladau: Not only is it here, but you don’t actually have to listen to us, give you potentially wrong information because we have a guest who is sponsoring this episode and he is an expert, so we’re pretty excited. So we have Andrew Bizer from the law firm Bizer & DeReus and Andrew. Can you tell us a little bit about yourself and your practice and what led you to disability law specifically?

Andrew Bizer: Sure, thanks for having me on the podcast. I’m really excited to be here with you today. Briefly about myself. I went to law school in Brooklyn. I went to undergraduate in New Orleans, Louisiana at Tulane University. And after working as a lawyer in New York for a few years, I realized I wanted to leave New York and moved back to New Orleans. New York was very cold and expensive.

Emily Ladau: Wow. We know a finger to about New York being cold and expensive. That’s okay.

Kyle Khachadurian: Great way to describe New York. I never.

Emily Ladau: That’s where we from.

Andrew Bizer: Moved back to New Orleans and I figured I’d just live here and work for a law firm. And then went out on my own and was just doing personal injury stuff like, car accidents or you know, contract disputes. And a friend of mine started working for a law firm that does ADA stuff. And he was telling me about it. And at the time I was a big brother in the big brother, big sisters of Southeast Louisiana. And my little brother is both his mother and grandmother were users. So I asked them, do you guys have any problems getting into places? And they just started laughing at me and you know, people listening to this podcast probably understand why. And they just gave me a laundry list of all these places that were not accessible. And so I went and checked them out and took measurements and took pictures and sure enough, they were completely inaccessible. Whether it was a parking or ramps or bathrooms, the whole thing. And so I started filing lawsuits on their behalf. And then from then on, I just was getting a little bit more ambitious with respect to filing lawsuits against the city of New Orleans for issues that they were having to the state of Louisiana. And then since I’m admitted to practice in New York I had a bunch of clients in New York who had problems, whether it was anything from a restaurant to Queens College. So and then from then I also do some work for deaf folks who don’t get signing interpreters at hospitals or other places. So that’s a bit of my background.

Emily Ladau: Well, we’re especially into the fact that you have dealt with and accessibility issues in New York, because every time we try to get around is a disaster every time?

Kyle Khachadurian: Given that this episode is primarily about the ADA we think that we know a lot about the ADA, and we think that most people listening to this have a basic understanding about the ADA, but since you are an expert, can you give us a quick primer on what the ADA is?

Andrew Bizer: The ADA was supposed to be a compromise between the business community and the disabled community wherein the business community said, okay, we’re not going to oppose this law anymore. Well, what we’ll agree to do is we’ll agree to self-police. So we don’t have federal ADA inspectors running around the country with cliff. We have private business who agreed to fix their facilities on their own. And the only way to enforce the ADA is through civil litigation, which is what I do. So it’s kind of funny you have all these, we can get to, I’m getting ahead of myself a little bit. You have all these folks who are trying to, you know, sort of defang the ADA by these conservative folks, but when really it’s, it’s a very conservative law in that we don’t have federal tax money out there just being spent on inspectors. It’s supposed to be self-policing. And so as you all know, the ADA is almost 30 years old. And these existing facilities, meaning as a legal term for facilities that were around before the passage of the ADA, they have a duty to modify their facilities as long as it’s readily achievable. And I’ll get to that in a second. So if you hear someone say, well, I don’t have to build a ramp we’re grandfathered in. That’s not true, but it’s not a hundred percent false. So the term readily achievable means it’s a weird sort of mix of can you afford to make this change, right? So if you’re a mom and pop bookstore and you have an attic where you keep the kids’ books and you don’t make a whole lot of money, the ADA doesn’t say that you have to spend $150,000 on an elevator, right. That kind of makes sense, but you got to put in a ramp. So that’s sort of how the ADA deals with facilities that were constructed before the ADA was passed. If your facility was constructed after the ADA was passed, you just got to comply with the ADA, unless it’s not practically feasible. Which basically means like if it’s built on a mountain or something like that, but there’s, everything’s feasible. So that’s pretty much the overview of sort of the background and what facilities have to do moving forward.

Emily Ladau: I think you touched on a lot of really important points about how people like to try to wiggle out of their responsibilities with the whole grandfather clause, excuse which I’ve gotten more times than I can count. Tell us what should people know with the 30th anniversary almost upon us, the 29th, this year of the ADA, about what the ADA requires of public entities. So can you just explain that a little bit in layman’s terms and hopefully we can actually address the difference between public and private entity requirements?

Andrew Bizer: As you know, the ADA is about access to places, right? And so either a place is owned by a government entity, whether it’s a state or a local, Oh, and by the way, the federal government is exempt from the ADA. They’re the ones who create the laws and they decided to exempt themselves. So in fact, I’ve had several trials in federal regarding wheelchair accessibility where my client couldn’t even get on the witness stand because the witness stand in federal court was not accessible, but I digress a little bit there. So if the facility is owned by a private company, like a restaurant or a shopping center, they have to comply with the ADAAG, which is the guidance. So when you hear people complaining about the ADA, they’re mostly going to complain about these guidelines that are very, have a lot of technical specificity. And they are technically specific for good reason because as someone who doesn’t use a wheelchair, I may think that a quarter of an inch, isn’t a big deal for a threshold, but if you’re in a wheelchair, you may think that a quarter inches is a big deal or where a toilet paper is hong. So facilities that are owned by private entities have to comply with these ADA guidelines. So which as deal with parking lot issues, ramps, bathrooms reach ranges, and there’s way too many to go into now, but they have those guidelines and they’re all there. They’re all there and online, and you can research them as much as you want, if you own a facility that you have open to the public with respect to it’s own by republic they have a different, more malleable standard, which is program accessibility, which means they don’t have to strictly comply with these guidelines. They just have to make sure that the facility, that the programs as a whole are accessible. And that’s where there’s a little bang, and there’s a little argument going on. So for instance we sued Queens College. My client had a bunch of problems. I sent my expert out there. We filed the lawsuit, which is something that we get to do. When you file a lawsuit, you get to have, what’s called a rule 34 inspection where I can send my inspector out and we can inspect the whole place and defendants public the people that we Sue often call this a fishing expedition and they’ll say, well, you didn’t complain about those bathrooms or that. So you don’t get to inspected, but the case law is very clear that once you’re in, you can inspect the whole thing. So anyway, when we sued Queens College, we found hundreds and hundreds of violations, and it wasn’t just one or two. So we felt like we had a good argument that they did not meet program accessibility. When you look at the facility as a whole, it’s just too messed up for lack of a better term.

Kyle Khachadurian: Why do you think it is that after almost three decades after the passage of the ADA, that disabled people still need lawyers, defending access needs such as like lack of curb cuts?

Andrew Bizer: We need lawyers like me to file lawsuits, because that is how the law was drafted to fulfill the promise of the ADA. You need civil litigants to try to force these people to do what they’re supposed to do. Now, the question, why do we even need that? Why don’t they self-police? Like they agreed to, I think it just goes back to, they don’t want to spend any money.

Emily Ladau: You talk about the fact that the ADA is basically written in such a way that in order for anyone with access need to get that access need implemented that civil litigation has to come into play. There are critics who say that this has created a culture of drive-by lawsuits. And I know that it’s been a topic of much debate. I know that it was a topic of an Anderson Cooper special on 60 minutes, I think. And I personally written about it. I’m personally very wary of the idea of drive-by lawsuits because I can understand how people are very quick to make the assumption that lawyers are preying on vulnerable populations. And I think it’s time that we pushed back against that. So what are drive-by lawsuits and how does it actually impact ADA compliance? And why are you not just engaging in drive-by lawsuits? What’s the importance of what you’re doing?

Andrew Bizer: If you’re filing a lawsuit against a property owner, because you want them to fix their property to make it accessible for a wheelchair user, the wheelchair user has to say, I’d like to come back and buy your stuff. That makes sense. If you’re going to try to force somebody to change something it’s got to because you want to go there. And so there has to be what they call an intent to return. And some attorneys who have clients they’ll go say, Colorado, and they’ll file a hundred lawsuits against a hundred different restaurants, will they have no intent to return? And so that is sort of an abuse of the system. Now, there are ways that we can address that without attacking the ADA. The property owner can file a motion to dismiss on a case by case basis saying, look, you live in Florida, you’re in Colorado, you filed a hundred lawsuits in Colorado. I don’t think you have an intent to return and then they can deal with it on a case by case basis. It’s just, it’s really interesting to me that so much attention has been made on the ADA and these few law firms that have that do abuse. I’m willing to say that there are several law firms that file tons and tons of lawsuits on behalf of the same person in a state that they don’t even live. That’s not right. But I think that the attention is I think it’s just this kind of misplaced sort of anti-lawyer let’s just, let’s pick up, pick on these disabled folks because I don’t really understand why it’s, it’s sort of a mystery to me because there are ways to address frivolous lawsuits on an individual basis without trying to change the entire ADA. So for instance, for me I’m asked often, why don’t you write letters first. Why do you just file a lawsuit? You should educate business owners and give them, maybe write them a letter and say, well, why don’t you, you have 90 days to build this ramp. You have 60 days to put in grab bars, whatever. And my response to that is, well, one I’ve done that sometimes, and it doesn’t work, but two is, I’m a private attorney, and I don’t get grants from the federal government to do this type of work I need to be paid. And so I’m not going to charge a wheelchair user to write a letter to McDonald’s I get paid from the defendant when we’re successful. Also, I have clients who while they may know they can’t get into a place they’re not very savvy as to why is the curb that bad? What a side flare is, things of that nature. And that’s my job. So I filed lawsuits without giving any advanced notice. And I like to say that the advanced notice is the 29 years that the ADA is in the past. So I can understand if I’m a small business owner and I get into a lawsuit out of the blue, how that would be frustrating. But I don’t think it’s as frustrating as my clients who want to go have dinner with their friends and can’t.

Kyle Khachadurian: You are speaking our language.

Emily Ladau: We are just nodding our heads and like, hell yessing at the computer.

Andrew Bizer: We recently, we had a case I’m going to digress again, but it’s, it’s kind of an interesting issue. We filed suit in Colorado on behalf, have a wheelchair, user, Trinidad, Colorado. And while I’m not at practice in Colorado, I partnered with a lawyer who is, and then I sort of piggyback on there and it’s called [0:19:20 Inaudible]. It’s a legal term for, I don’t even know what it is in Latin, but you piggyback on and you can be a lawyer for a certain case. And the city of Trinidad had really bad curve cuts and this guy, and they have no public transportation. So my client is, has a motorized wheelchair. And he couldn’t get the places. He’s got a role in the street. And what he did was when we first moved there, he went to the city hall and he complained. And he complained at the government meetings and complain and complain. And he filed a complaint with the DOJ and they didn’t do anything and they didn’t do anything. So he heard about me called me up and we filed a lawsuit. Well, they filed a motion to dismiss based on the statute of limitations saying, well, you discovered these curb cuts four years ago, and there’s a two-year statute of limitations. And you filed lawsuit four years after you described this. So we’re going to throw your case out of court. And it did, it got thrown out, it got dismissed. We lost. And we were like, Holy shit, this is a really bad decision. Because it’s not about when you discover things are bad. It restarts every time you encounter that curb cut right? Every time this leaves his apartment, he gets injured in the legal term of injured every single time. So we filed an appeal and we won and we got it reversed. And we’re very happy about that. And the city of Trinidad had other municipalities in Colorado do what’s called an Amicus brief where they’re not part of the lawsuit, but these other municipalities were like, Hey, if you rule that the statute limitation starts every time you encounter a messed up curb cut, then we’re all going to get sued. And this is going to be really bad for us. And the court ruled against them or us, and was like, well, you can always just opt to sort of fix your curb cuts. And then you won’t get sued. How about that?

Emily Ladau: Yet it’s, like people are actually trying to dismantle the ADA even more. And you were talking earlier about how you don’t give people any notice prior to filing a suit. And personally, I’m all for that because you’re absolutely right. They’ve had multiple decades to make this happen, to abide by the law. But apparently that’s not enough because there was a whole lot going on relatively recently about the ADA Education and reform act back in 2017. So that, and correct me if I’m wrong required, essentially, that businesses received notification and are given even more time to correct the problem before a suit is filed. So can you talk a little bit about where that legislation currently stands in the government and why the idea that it’s actually about education and reform is such a misnomer?

Andrew Bizer: That bill bullshit a hundred times over and dead, and thank God is dead and don’t thank God. Thank your democratic senators. They all wrote a letter after it was passed in the house that don’t even bring this up in the Senate because it aren’t going to happen.

Emily Ladau: Yeah. There was one of my local democratic reps who actually backed it. So I was pretty disappointed. So I was glad to see that it kind of does.

Andrew Bizer: Yeah. The worst thing about that, that bill and thankfully it’s only it dead bill was not only does it give them more time, but it had a requirement that you have to give them notice of every single violation and you have to site, which provision of the ADA ag that they’re violating. So for instance, let’s say I talked about my little brother, his mother and grandmother. These are not savvy folks. How in the world are they going to be able to write a letter to McDonald’s and cite the exact section of the ADA ag about curb cuts and side flares of curb cuts and vertical signage of parking and how tall the toilet has to be. They just know the toilet is high, right. They just know they can’t transfer. They can’t go into the stall, close the door and transfer onto the toilet. Right? How this bill right. Was drafted so that when you give that notice, you have to give it every single specificity. Maybe I use that verbally. Every, they had to use every single detail with specificity there. I got it. Including which section of the ADA ag you’re violating or else there’s no notice. So that would force these folks to have to retain lawyers, to write those letters, which is defeats the whole purpose of what they claim that the law was all about. So thankfully it’s dead. But we’ve got another election coming up in 2020. And look, if the Democrats obviously they’re not in control of the Senate, but they can meet 60 votes to pass a law. They’re not going to get the 60 votes, but who knows? I mean, I don’t know what’s going to happen, so we just got to stay vigilant. Another thing that I think is important to talk about with the ADA and it’s a dirty little secret of the ADA, which Anderson Cooper should have talked about, and here’s what it is. And this has happened to me several times. If you file a lawsuit against McDonald, when you say you don’t have a ramp and I’m suing you to put in a ramp and pay my attorney’s fees, right? If they immediately go in there and put in a ramp, your claim, all of your claims are mused including your claim for attorney’s fees. So if you get sued, if you’re a small business owner and you get sued and you say, well, this is this, this is awesome bullshit. They sued me because my toilet paper thing was too high and I didn’t have the right striping. All you got to do is lower the toilet paper, make the right striping and tell Bizer that’s me to go pound sand. I’m not paying you a nickel in attorney’s fees. You don’t have to, but these folks who want to kill the ADA, they don’t talk about that. When they’re trying to do this education in the format, when they’re Oh, small businesses are being abused, these small businesses, all they do is make the changes. The claim is moved. And the claim for attorney’s fees has also moved. And because, and this is why is because I will say as the attorney, but this lawsuit was the catalyst for the change. And therefore the lawyer should get paid. But the Supreme court has rejected that in this case called Buckhannon, and it says that if your lawsuit was the catalyst, your lawyer doesn’t get paid. The only way your lawyer can get paid is if he or she wins through a judgment by the court. So really it’s the most disingenuous crap ever to say that small businesses are being hurt by these lawsuits. When all the small businesses have to do is make the change and say, your claims are moved. You can come into my restaurant now and eat, and your lawyer ain’t going to get paid. And that happens to me. Sometimes it happens and I go, okay, well, sometimes I don’t get paid. Sometimes I get paid at least my client’s happy.

Kyle Khachadurian: I didn’t know that at all. Did you do that is nonsense?

Emily Ladau: We have just a couple more questions that we want to make sure that we cover.

Kyle Khachadurian: We’re always curious about what the average sort of disabled person can do to advocate for themselves when it comes to things like ADA violations. So are you aware of any tools or resources that people like Emily or myself can use when we experience or encounter an ADA violation before we know what to do?

Andrew Bizer: The ADA and that’s all online about, this technical specification I have a tape measure and a slope meter in my car and take measurements, take pictures. If you want to self-advocate. Look, I understand a lot of folks, don’t like litigation. I encountered all the time where people call me up and they complain about, this place not being accessible in that place, not being accessible. I meet with them. I visit the place and I say, all right, well, I mean, I’m ready, ready to drop a lawsuit and they go lawsuit, what do you mean? I don’t want to Sue anybody. I’m not looking to just person. So I mean, nobody’s a person they just view if you get wronged and there’s no fix it, then you got to file a lawsuit. But if you want to self-advocate and write letters and educate, I mean, you’ve heard that right. Educate, not litigate. That’s great. I’m fine do your thing. But it’s just important to you know, follow up a lot and make sure that you, we give them specificity as to what problems there have been, but really the resources are the ADA ag and just trying to, be as demanding as possible. That’s pretty much what I can recommend it if you’re the type of person who doesn’t want to file a lawsuit, which I totally get. I mean like first of all, for instance, I have some, some clients in small towns in Louisiana who you know, don’t want to file a lawsuit because it’s a small town and there’s a lot of anti-litigation propaganda, for lack of a better term out there that makes you know, folks who’ve been wrong, not want to exercise their rights.

Emily Ladau: On that note, to wrap things up, what we really want to make sure that we do is give a final takeaway. That’s what we do for all of our episodes. So in this case, what is your final takeaway for the disability community to know about their civil rights? And also what’s your final takeaway for non-disabled people to take?

Andrew Bizer: Takeaway is this, the ADA is there to promote accessibility and it’s very simple. And yet almost 30 years later, we still need people like me. We still need people like you all to make people that own public facilities do the right thing. And it’s unfortunate that there such a big pushback from it, especially in light of what I explained of how all they got to do is fix the thing and tell me to go F myself, and I’ll just go, okay, you got me, I’m not going to get my attorney’s fees on this one. My client’s going to be able to, you’ll get some fried chicken. And there you go. If you think about all the places that I got to sue to make accessible I mean, if there wasn’t for the ADA, we be able to make them accessible. So thank you, George HW, thank you to all the people who bought for the ADA and all the people who are continuing to fight.

Emily Ladau: I think that is a really important point. I know that I’ve often heard from an older generation than the disability community that younger disabled people take the ADA for granted and perhaps in some ways we do, but at the same time, I very much appreciate all of the rights that have been given to me and the paths that have been paved. But unfortunately, as evidenced by the fact that we had this conversation, there is still quite ways to go. And I think that is my final takeaway. What about you, Kyle?

Kyle Khachadurian: I’m just learning so much about the ADA. I’m just appreciating [0:33:20 Inaudible].

Emily Ladau: I understand.

Andrew Bizer: I’m so happy to share this, this is what I do every day. I mean, I’ve been doing this for over five years and for me, it’s very rewarding to, you know, actually see my work in place, actually going to places in my neighborhood where they’re built ramps and seeing these things happen and, and having my clients tell me that they’re able to go to places where they were not able to go.

Kyle Khachadurian: We completely agree.

Emily Ladau: We’re totally on the same page. And we really want to thank you for taking the time to join us, to have this conversation and to hopefully help educate people about the physical access requirements of the ADA and how important it is to adhere to those requirements. And so if people are interested in connecting with you, can you tell our listeners where they can find you?

Andrew Bizer: Sure. You can call me (504) 619-9999. Or you can email me at Andrew at Bizer law, B-I-Z-E-R-L-A-W.com. You never have to pay me out of pocket. The property owner has to pay me. I’m having to talk to him with matter what state you’re in. I can partner up with attorneys and other States like I’ve done in Colorado, Jersey, Illinois other places. I’m happy to just talk to you about some issues. You’re having to send emails, pictures, whatever this is what I do, and I’m happy to be doing it, and yeah, reach out. I’m happy to talk.