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Hawaii disabled
access ruling limits
focus of future lawsuits
A judge rules that a person
By Russ Lynch
can't sue for a disability
that he or she doesn't have
Star-BulletinDespite losing three out of seven cases brought against his restaurants under the Americans with Disabilities Act, L&L Drive-Inn operator Eddie Flores says he has no regrets about fighting the cases brought by wheelchair-using diners.
Flores and his attorney, Ken Kuniyuki, said yesterday's decisions by U.S. Magistrate Francis Yamashita broke important new ground by ruling that a person with one disability, such as being confined to a wheelchair, can't sue for a disability he or she doesn't have, such as blindness.
Attorney Lunsford Phillips, who filed the cases against L&L among hundreds of ADA cases he has brought against isle businesses on behalf of disabled clients, also claimed victory.
"We're so happy that the court so strongly supported the ADA and the rights of individuals to bring these kinds of suits," said Phillips, who also uses a wheelchair.
Flores told a news conference yesterday that the ADA violations identified by the judge will be corrected quickly and will cost the restaurants a total of about $1,500. In that sense he has won a victory, Flores said. Of an original 11 cases, four were dismissed and in two of those the plaintiffs were required to pay the lawyers' fees, he said.
In any case, he said, it was always his intention to comply with all the disability laws. But he said he fought because the L&L business has more than 50 restaurants and he was concerned about a never-ending process of one after another being sued.
Phillips said the message behind Yamashita's decisions is that businesses will be made to comply with the ADA accessibility rules, relating to such matters as access ramps for wheelchairs, table and counter heights, toilets for the disabled. And a more important message is "don't wait to be sued," he said.
"Don't wait because you think it's too burdensome to comply with the law," Phillips said. If it really is too burdensome to comply, a business is off the hook anyway, because the law requires public-access establishments only to do what is readily achievable, he said.
Phillips said from the start his experts advised him that it would have cost Flores and his restaurants, some of which are company owned and some of which are franchises, only about $3,000 to correct all the alleged violations.
Flores and his attorney, Ken Kuniyuki, declined to say how much they spent on the court battle that has lasted almost three years, the first such set of cases to go to trial in Hawaii. But they said they had to make a stand.
Kuniyuki said Phillips offered early on to withdraw the complaints if L&L would pay him $70,000. Kuniyuki and Flores have described the cases as a form of extortion.
Not so, Phillips said.
His entire aim and that of his clients is to bring all businesses into compliance with the intent and letter of the federal law prohibiting discrimination against people with disabilities.
Phillips also said he believes the judge erred on the question of whether a disabled person has the right to sue on behalf of others with different disabilities. The ADA law is a civil rights law, he said, and ADA cases could be likened to racial discrimination cases.
In the case of a "whites only" policy, "a person of color sues on his own behalf on behalf of all persons of color," Phillips said. "The law wouldn't require a brown person to sue and a yellow person to sue and a red person to sue."
In his rulings, Yamashita said that although ADA requires businesses to comply with all disability rules, a complainant cannot sue for an injury or barrier that does not directly relate to his personal disabilities.
Although Phillips had filed suits on behalf of Hank Emerick and other wheelchair users who can see, the suits included complaints about the lack of braille signs.
