El Diablo Restaurant Citation

[mark handler]

El Diablo Restaurant Citation

Fox, et al. v. Morreale Hotels LLC, and Sketch Restaurant, LLC d/b/a El Diablo Restaurant, 10-cv-03135-RPM-MJW

http://www.ccdconline.org/01-13-2011/el-diablo-restaurant

Issues

El Diablo is a Denver restaurant, located at First Avenue and Broadway. The restaurant space was renovated and opened in August of 2010. The owners and operators of El Diablo built raised seating areas that are inaccessible to customers who use wheelchairs. Nearly all of the seating areas inside El Diablo are completely inaccessible to individuals who use wheelchairs. The ADA requires that when a restaurant makes alterations to its dining areas, the altered areas must be wheelchair accessible. El Diablo had two elevated seating areas built that are not accessible. At the time the lawsuit was filed and for some time after, there were two tables on the non-raised seating areas that are low, but the bar, and all other seating inside is at high tables. Defendants even put high “cocktail” tables in the only part of the restaurant that might be accessible to a customer who uses a wheelchair. During this lawsuit Defendants have tried to convince the court that all of the tables in the restaurant are accessible and that accessible tables are “regularly” available in the one small accessible area, they are not. Just look in the front window of El Diablo any time, any day, you will see the high tables with bar stools. It seems they can only find lower tables when they are taking pictures for the court. See [latest Morreale Dec. and photos]. Plaintiffs produced evidence showing El Diablo does not provide such tables[, but you can go look for yourself. Despite efforts to notify the owner, Jesse Morreale, in advance of the lawsuit, Mr. Morreale refused to meet. Since the time the lawsuit was filed, Mr. Morreale gave a sworn statement to the Court saying he would rather give special treatment to customers who use wheelchairs Even though the restaurant was completely renovated and the inaccessible raised seating areas were built in during the alterations, he takes the legal position that separate, segregated seating for people in wheelchairs is okay, because “El Diablo does not restrict any portion of the restaurant to use by people who use wheelchairs.” Mr. Morreale ignores the fact that, at the time the lawsuit was filed, only two tables were regularly made available unless someone was lifted up the raised seating areas, which Mr. Morreale says are “slightly elevated,” “approximately one foot off the ground,” accessible by “one step.” El Diablo boasts about its “El Diablo Restaurant Policy Regarding Seating of Mobility-Impaired Patrons.” Instead of providing “full and equal” access as the ADA requires, El Diablo gives “priority seating” to customers who use wheelchairs by moving tables around if you ask. Also, “Mobility-impaired patrons of El Diablo are welcome to seek “third-party assistance” to access tables located in the restaurant’s raised seating areas [i.e., carry them up the step]. However, no El Diablo manager or other employee shall physically assist a mobility-impaired patron to secure seating at any such table,” and ... “Any El Diablo manager or other employee asked to physically assist a mobility impaired patron to access a table in one of the restaurant's raised seating areas shall politely decline such request and expressly disclaim any liability (both personal and on behalf of El Diablo) for any accident or injury that might result from such efforts; provided, however, that El Diablo staff may (and should) discuss with any mobility-impaired patron all available restaurant seating options.” Mr. Morreale’s declaration and the priority seating policy are attached in the documents. Mr. Morreale’s later declaration stating that accessible tables are “regularly” provided is also provided along with Plaintiffs’ surreply showing the opposite.

Status

CCDC, Julie Reiskin and Jaime Lewis join original plaintiff Tim Fox in challenging El Diablo's action. Plaintiffs also filed a Motion for Summary Judgment requesting the court rule that as a matter of law that restaurants and other public accommodations cannot, under the ADA, build or alter public accommodations that are not completely accessible. El Diablo is a restaurant that was altered a year or so ago. The owners and builders designed and constructed raised seating areas that are not accessible to people who use wheelchairs. These raised seating areas did not exist before. El Diablo created them. Many depositions have been taken. The many motions and briefs in this case are provided. On November 9, 2011 Judge Matsch granted our Motion for Partial Summary Judgment and ruled "the alterations made to the El Diablo Restaurant space created a new barrier to wheelchairs." We filed our reply to the motion for injunction in the El Diablo case. The Court ruled El Diablo's inaccessible dining areas in its newly altered restaurant violate the ADA. Rather than fixing the access barriers, Defendants said, “Plaintiffs are doing nothing more than advancing the political agenda of a discrete and empowered minority of three that has demonstrated no real interest in eating a meal at El Diablo.” .

 

[mark handler]

WAKE UP AND SMELL THE ADA

http://www.ccdconline.org/sites/default/files/2012.01.31_wake_up_xx__0.pdf

In the introduction section of the ADA complaints we file, we include this: “On July 26, 1990, now more than twenty years ago, the ADA was passed, establishing the most important civil rights law for people with disabilities in the nation's history.” So why is it more than twenty years later, CCDC’s Legal Program still must file so many lawsuits to gain compliance? The answer may be simple: No one bothers to think about it. They have better things to do. Until they get sued. And worst offenders? Government entities such as: state Medicaid agencies, county departments of social services, licensing agencies, to name a few. Recently, it has been county Sheriff’s Offices. Government entities designed to serve their citizens, even those designated to serve and protect the public, routinely discriminate on the basis of disability. In large part, it is because they don’t bother to try to comply. Until they get sued. Government entities are called “public entities” under the ADA, covered by Title II and its regulations. Routinely, in our work, the Legal Program and CCDC’s advocates and members send out requests for records to those government entities. These take many forms, but commonly our requests ask for something like this: Provide records of all policies, practices and procedures related to making reasonable modifications in policies, practices, or procedures to avoid discrimination against individuals with disabilities. Public entities are required to make such accommodations and modifications under the regulations. More often than not, the answer we get back is, “We do not have any such policies or records.” Zero. Zilch. Nada. Nothing. When they get sued, they usually say, “The ADA doesn’t require us to have policies like that.” We beg to differ. Quick history lesson. While I'm sure you're all very well versed on Title II of the ADA, let's review:

ADA Title II 101:

“In the beginning...”

All public entities were required to (and, for quite some time now, have been required to) conduct a “Self-evaluation,” requiring that the entity “evaluate its current services, policies, and practices, and the effects thereof, that do not or may not meet the requirements of this part and, to the extent modification of any such services, policies, and practices is required, the public entity shall proceed to make the necessary modifications.”

And so it goes...

Public entities are also required to provide “Notice” to the public of “information regarding the provisions of this part [of the regulations] and its applicability to the services, programs, or activities of the public entity, and make such information available to them in such manner as the head of the entity finds necessary to apprise such persons of the protections against discrimination assured them by the Act and this part.” Methods of providing this information include, for example, the publication of information in handbooks, manuals, and pamphlets that are distributed to the public to describe a public entity's programs and activities; the display of informative posters in service centers and other public places; or the broadcast of information by television or radio. In providing the notice, a public entity must comply with the requirements for effective communication in § 35.160. The preamble to that section gives guidance on how to effectively communicate with individuals with disabilities.

For public entities with 50 or more employees, the ADA requires there be “Designation of responsible employee and adoption of grievance procedures.”

It didn’t happen.

Routinely when we ask for these records, we get the same response, "Nope. Nothing like that. Haven't seen it." "I think we did it, but we don't have it anymore."

Doesn’t it make maybe a teenie weenie bit of sense to develop, keep, maintain, and implement some policies about how to comply? And maybe update it from time-to-time? Maybe even tell the public about it?

“What we have here is a failure to communicate.”

In no area of disability discrimination is the complete utter failure of public services to develop and implement policies more egregious than in the requirement to provide effective communication. The ADA’s requirements regarding “Communications” are very clear, and the regulations devote an entire subpart to the subject.

Can’t we just talk about it?

“A public entity shall take appropriate steps to ensure that communications with applicants, participants, members of the public, and companions with disabilities are as effective as communications with others.” To do this, “A public entity shall furnish appropriate auxiliary aids and services where necessary to afford individuals with disabilities . . . an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity of a public entity.”

“What’s that you talkin’ ‘bout?”

“Auxiliary aids and services” include many types of services and equipment to ensure communication is equally as effective with individuals with disabilities. These include, for example, qualified interpreters and videophones for effective communication with deaf individuals and Brailled materials for blind individuals. In order to ensure effective communication is provided, “A public entity shall ensure that interested persons, including persons with impaired vision or hearing, can obtain information as to the existence and location of accessible services, activities, and facilities.” “In determining what types of auxiliary aids and services are necessary, a public entity shall give primary consideration to the requests of individuals with disabilities. In order to be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability.”

Here’s the thought process a public entity or a lawyer advising it should have had:

Says here I gotta know about the auxiliary things. I gotta make sure I know how to make ‘em available. I gotta tell people who might need ‘em about ‘em. And I gotta give ‘em the one they think might actually work effectively. Oh yeah. Says here I shoulda figured this out and shoulda been doin’ it since 1990.

How much longer can I wait?

We have been investigating and in litigation with public entities recently – several police departments and county sheriffs offices, in particular – that had no policies whatsoever regarding effective communications with individuals who are deaf. If they

have policies at all, they are woefully inadequate. For example, documents obtained from a county Sheriff’s Office in which we asked for:

Specifically, I request copies of any and all documents and/or policies relating to the provision of sign language interpreters for arrestees of the Adams County Sheriff’s Department. Further, I request copies of any and all documents and/or policies relating to the provision of sign language interpreters for detainees and/or inmates of the Adams County Jail.

We got this.

But, its so haaaaaaard. I don’t know what to do.

The U.S. Department of Justice has issued specific model policies for law enforcement agencies. Now, please know that you don't need to have a fancy law degree and many years of experience researching this stuff to find these model policies. If someone even peripherally associated with a law enforcement agency wondered what should be expected of said law enforcement agency with respect to people with disabilities, a quick search on “law enforcement agencies americans with disabilities act” would shed quite a bit of light.

All public entities were responsible for compliance over 20 years ago. The DOJ provided -- and does provide -- ready access to compliance manuals, model policies, technical assistance manuals and more.

So what this means for you, public entity:

When CCDC’s Legal Program is able to take on one of the numerous cases in which an individual with a disability was denied a reasonable accommodation on the basis of disability or not offered or provided effective communication, your public entity will not get a nice letter from our office. You are likely gonna get sued.

Your public entity shoulda done it 20 years ago. You had better do it now.

 

[Msradell]

El Diablo is the kind of restaurant that makes me wish that the handicapped could sue establishments and recover a monetary settlement instead of just legal fees! El Diablo certainly needs to be taught a lesson and the normal slap on a wrist is not sufficient.

 

[fatboy]

It's close enough that I would be tempted to go there and check it out. I don't believe in big settlements, but to blatantly ignore the law, and try to defend it..........hmmmmm