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Wednesday, July 26, 2000

By Craig T. Kojima, Star-Bulletin
At King and Bethel Streets downtown, Honolulu lawyer
Lunsford Phillips crosses using one of the newly renovated
curbs. Phillips has been representing disabled clients since 1993.

Disabled hail
effects of ADA

The 10-year-old bill has
gotten results; now, many
fear the effects of a backlash

'Sledgehammer' approach criticized

By Pat Gee


Handicapped parking spaces and restroom stalls, curbs lowered for wheelchair access, ramps next to stairs, lower drinking fountains and wider aisle spaces in new buildings are a few of the visible effects of the Americans with Disabilities Act passed ten years ago today.

Hawaii has made such "tremendous advances" since then, said Gary Smith, president of the Hawaii Disability Rights Center. But many advances only came after court battles and lawsuits, he said.

Francine Wai, executive director of the State Disability and Communication Access Board, said Hawaii "has some decent laws on the books" that require equal access for the disabled, but the "biggest gap is a lack of consistent enforcement" of these laws.

"We have a lot of good motherhood and apple pie statements that sound politically correct ... but we don't have the money to put behind their implementation and enforcement." And the disabled "shouldn't always have to go to court," Wai said.

The ADA requires equal rights in employment, public facilities, transportation, state and local government services and telecommunications. When people think of the disabled they may picture someone in a wheelchair, Smith said, but disability includes people with difficulties in moving, seeing, hearing, and people with mental and emotional problems.

But not everyone is supportive of the ADA. Some small businesses in Hawaii claim the law is forcing them to spend money in court that could be spent improving access for the disabled.

Roy Shimonishi, owner of the Hungry Lion for 19 years, spent $30,000 in legal fees and renovations when he was sued three years ago over access to a restroom.

"Whenever there is a problem, things should be reasonably worked out before they sue somebody," he said. "A lawyer shouldn't just go in and measure the place" and sue because "you're short two inches here or there," he added.

"The ADA is a good law and everyone should comply," said Eddie Flores, of L & L Drive-Inn restaurants. "The problem is how do you carry out what is right and what is wrong. There are so many gray areas in the law itself."

Seeks 'low-cost alternative'

Ken Kuniyuki, Flores' attorney, says the ADA could lead to a business owner finding it easier and cheaper to completely remove access to a restroom, a gumball machine, or whatever, so that "everyone has equal nonaccess," which is fair but hurts everyone.

Lunsford Dole Phillips, a Honolulu lawyer who has built his reputation as an advocate for disabled clients since 1993, says businesses can avoid lawsuits by complying with the ADA or by reaching settlements out of court.

"If we put our heads together, we can reach a fairly low-cost alternative," he said.

He said businesses are "nuts to wait to be sued" over not complying with Americans with Disabilities Act requirements.

Most settle out of court

The Hawaii Civil Rights Center filed about 60-65 lawsuits last year, and about 250 since 1996, Smith said. In all those years, "only three to four lawsuits have actually gone to trial" as businesses usually comply with regulations once they have been notified that they are being sued, he said.

But Smith said he is seeing a "backlash" against the ADA in the form of a proposed amendment that would require a 90-day notification of a violation.

"We used to do that, but people ignored the notice and we stopped doing it to save us time and resources. After all, the bill is 10 years old. And if a business is interested in complying, the lawsuit can be dismissed," he said.

Wai said the private sector has been more "subject to lawsuit" because it has been left on its own to conform to ADA requirements.

"People have to accept the fact that it is equally important or even more important and justifiable to the civil rights issue" to provide accommodations for the disabled as it is for them to comply with an updated plumbing or electrical code that also increases the cost of building or renovating, she said.

Disabled-rights advocates
criticize state’s
‘sledgehammer’ approach

By Pat Gee


People in Hawaii with disabilities will not lose any rights if the state wins its challenge against the 10-year-old Americans with Disabilities Act, says senior Deputy Attorney General Charles F. Fell.

But Francine Wai, executive director of the state Disability and Communication Access Board, said the state is "throwing the baby out with the bath water" in supporting Alabama's challenge to the ADA.

Gov. Ben Cayetano filed a "friend of the court" brief in support of Alabama's argument that the 11th Amendment gives states a "sovereign immunity" from private lawsuits brought under federal law. Mark Obatake, executive director of the Hawaii Centers for Independent Living, said the governor is using a "sledgehammer" to do away with the ADA, when "pinpoint accuracy" is needed instead to eliminate the right to sue the state for noncompliance without undermining the other parts of the ADA, Obatake said.

Fell said the only effect of the state winning in the Alabama case is that "if you want to sue the state for monetary damages, you have to sue them in state court, not federal court.

"Private companies can still be sued in federal court," he added.

Fell said Hawaii has a large number of laws in existence that would protect all the rights of the disabled. Fell said several state laws dealing with real property, employment, discrimination in public places, social services, public office and public lands would protect the disabled if the ADA were repealed.

The governor's intent in filing the amicus brief "should not be misinterpreted as jeopardizing the rights of the disabled to access services and employment of state government," according to a July 7 letter from Cayetano to the access board.

But Obatake said the ADA is necessary because Hawaii's history of compliance with the ADA has been "tarnished," and other states throughout the nation have language written into their constitutions that blatantly discriminate against the disabled.

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