Disability News /KLKC
By Colleen Surridge Parsons Sun Website: http://parsonssun.com/
Most persons would be outraged if they were discriminated against today based on race, gender, age, religion or other similar attribute, but when related to persons with physical disabilities, discrimination is often ignored by those able bodied.
Reliant on a scooter for mobility, Judy Arabia said she faces issues of discrimination based on her physical disability daily in that many places accessible to the general public are inaccessible to her.
Inaccessibility not only prevents access, but loss of independence when one is forced to be reliant on others for assistance.
One example, she said, is the building housing the Sears and Dollar General stores at 2612 Main in Parsons.
The ramp area in front of the Dollar General store is steep, short and narrow, providing no landing area to turn a wheelchair around, and the doors are not electronic, making maneuvering to get inside difficult, and for some impossible. Even if someone else holds the doors open, Arabia said the threshold at the bottom of the door frame is so high she cannot get her scooter over it without assistance. Once inside, aisles are so narrow she cannot operate her chair to maneuver through and around them.
“I have to have my husband go with me to help me get over the threshold and go down aisles I can’t get down, or I just send him into the store,” Arabia said.
The Americans with Disabilities Act is meant to allow for “equal participation of individuals with disabilities in the ‘mainstream’ of American society,” including “equal opportunity to participate in or benefit from the goods and services offered by a place of public accommodation ... Individuals with disabilities must be integrated to the maximum extent appropriate.”
Arabia’s continued frustration over the situation led her to contacting Southeast Kansas Independent Living about how to pursue getting the store to cooperate in making the changes.
That contact led to SKIL advocate Rick Knight organizing a meeting with Arabia and others who have complained about the lack of accessibility to Dollar General.
Knight explained he had faced the same issue in attempting to enter the Sears store next door to Dollar General.
“I went to Sears to try to get a part for my dishwasher. The threshhold is so high that you have to get a running start at it, and if you don’t hit it at the exact perfect angle, it will throw you in whatever direction the angle is you did hit it at, and the door openings are only 32 inches wide,” Knight said. “I was a little off and when I hit the threshhold it threw my chair sideways into the doorway, smashing my hand. My hand was bleeding. I said something to the manager about the problem with access, but he didn’t seem to care.
“Thresholds can’t be higher than a half inch for wheelchairs and scooters to be able to get over them. If you have to have an able bodied person with you to be able to do things, it is not OK. Accessibility has to be where we can do it ourselves, independently.”
Public accommodations built before ADA came into effect in 1992 are only required to remove architectural barriers in existing facilities if removal is “readily achievable.” Structural issues with a building or extreme financial burden on the building owner or tenants can be claimed as reasons for not meeting ADA’s general requirements.
Determining what is readily achievable, and if the general requirement has been violated by a public accommodation, is a long, drawn-out process, requiring a long-term commitment and patience from those who want to pursue it.
All those present at Knight’s meeting concurred that they were ready to pursue with an official complaint. Several noted that in rural areas shopping options are limited. Add to that being limited by a fixed income, and options are reduced even more, forcing many persons on low- and fixed-incomes to be reliant on the lower cost goods and merchandise available only at discount stores.
As well, a few of those present said they had made verbal and written complaints to the manager of Dollar General and the landlord, Mike Creel, in the past. Creel was accommodating in providing handicap accessible parking spaces and signage at the front of the building, which all present said was most appreciated.
In regard to making the restroom ADA accessible, Knight said Krull had told him he could not afford to do so, and would likely close the restroom to the public, as they are not required to provide the public with restroom facilities.
Linda Deidiker said she wrote a letter to Creel about a year and a half ago regarding the problems. She said Creel called her and responded that making the building ADA accessible would place an undo financial burden on him and was therefore not “readily achievable” under ADA. Besides costs to himself, she said Creel noted the changes would require the businesses to shut down for about a week, causing tremendous loss of revenue they could not afford. Attendees said this would be somewhat understandable, but Dollar General recently closed down for a week to enable installation of new refrigeration units and rearrangement of shelving and displays. Accessibility issues could have been readily addressed then.
Unfortunately, Arabia and others at the meeting said, those changes at Dollar General actually resulted in making the interior less accessible, as shelving units were placed closer together, making aisles narrower and preventing some wheelchairs, power chairs and scooters from navigating them. As well, Arabia said, display units at the end of the aisles often prevent wheelchairs from making the turns.
Both entrances on the Sears/Dollar General building consist of double doors that open separately, with no middle partition between them. Each doorway is approximately 32 inches wide, so with both doors open, the entire width of the opening is more than 60 inches.
“If the doors were electronic, that would help a lot,” Knight said, “but there would still be the problem with the threshold.”
Some able-bodied people at the meeting said even they have issues with tripping over the threshold or getting heavier carts over it because of its height.
Installation of a new electronic door system would not be required. There are pneumatic door opening systems available for $2,000 to $4,000, and removal and reconstruction of the entryway to address the ramp, landing issues and threshold problem could likely be addressed for between $5,000 and $10,000 for each entrance, according to local people in construction who are familiar with ADA, the premises and the changes needed.
The ADA Title III technical manual states, “Both the landlord and the tenant are public accommodations and have full responsibility for complying with all ADA title III requirements applicable to that place of public accommodation. The title III regulation permits the landlord and the tenant to allocate responsibility, in the lease, for complying with particular provisions of the regulation. However, any allocation made in a lease or other contract is only effective as between the parties, and both landlord and tenant remain fully liable for compliance with all provisions of the ADA relating to that place of public accommodation.”
Creel said when he purchased and remodeled the building about 18 years ago, he was told it met all ADA specifications, and the city of Parsons provided him with certificates of occupancy, required by stores such as Dollar General and Sears, stating they meet accessibility guidelines.
“I’ve seen people with those Rascal scooters go in and out of there, loading and unloading with no problem, but we’ve had a few that always seem to complain,” he said. “I know that there is a little bit of an incline, but the thresholds at both buildings met ADA regulations, or we couldn’t have gotten the occupancy permits stores like Dollar General require to keep from having all kinds of problems like this.”
When he purchased the former Safeway building from the city of Parsons, Creel said it was in horrible shape.
“It had six inches of water on the floor, the roof was shot. It was a mess. We borrowed $200,000 and put on a new roof and installed new ceilings, floors, electricity and plumbing. We took out the old east and west doors, closed them off and made entrances in the front. The sidewalk wasn’t adequate so we tore it out and poured a wider one. We took the curb locks out and re-poured the parking lot so it was level and painted the lines for disabled parking and put up signs,” he said. “I don’t know what to tell them. We’ve done everything we can. We have met the codes. We don’t feel there is any problem there. Most people seem to be able to get in and out of there fine. It just seems to be a few that complain about the entries. The issue seems to come up every three years or so and then it goes away for awhile.”
Spending between $10,000 and $20,000 for each building to make the requested changes is simply not financially feasible, Creel said.
“Renting the building out is not a big profit deal. We have to keep rent reasonable to keep those businesses in there,” he said. “We pay about $20,000 a year in property taxes, and we pay sales taxes. As the landlord, we are responsible for paying the property taxes and insurance on the building, so when all is said and done, it is not that profitable.”
To install even the pneumatic doors also entails cost of maintenance and repairs to keep them operational, which can be an expensive venture when they are heavily used, bringing into play additional ongoing costs, Creel said.
“We are very receptive and sympathetic to the needs and have respect for those people with disabilities. We have looked at the entrances; we have looked at the possibility of re-pouring the concrete, but if we did that, it would result in squared-off edges on the sides that are higher than the sidewalk, that will cause other people to trip,” he said, thus the entire sidewalk would have to be replaced. “... It is just cost prohibitive. And the businesses would have to close down for about a week, costing them revenue.”
Also important is keeping businesses in the community, supporting the city and county through sales taxes. Creel said Dollar General does about $1 million in business annually and he imagines Sears does close to that.
“If I have the rent too high, the people might move. Dollar General and Sears sign three-year leases, so when their three-year lease is up, then we re-negotiate. If I raise the rent to cover those kinds of expenses, they will move out. Then I am left with big spaces to fill. Most retail businesses do not want spaces that large, and they would want me to divide it up into smaller spaces. That would mean investing even more money in installing more bathrooms, plumbing, electric, etc.,” he said. “As it is, it is a win/win situation for everyone.”
Whether or not the building is in compliance would be determined by the city in accordance with state ADA regulations that mirror the federal regulations. As well, whether $7,000, $12,000 or $20,000 could be considered a financial burden for the landlord or leasee would be left to the agencies making decisions through the complaint process.
“What would be nice is if those renting the buildings would split the costs of the ADA changes with the landlord,” Deidiker said.
Others at the SKIL meeting said it would be great if the city would provide a grant to the landlord of the building, enabling him to address the ADA issues, as a show of support for both the long-time businesses and numerous people in the community who wish to independently use the stores.
“The city has given out bigger grants to several other businesses this year or two for remodeling. It would be nice if they would give a grant for this purpose,” Knight said.
No one present wants to cause undo financial hardship on the landlord or the tenants, but both businesses in the building are part of large chains, not small “mom and pop” businesses. Online complaints regarding Dollar General Stores’ inaccessibility issues are posted from persons in various states, showing this issue is shared by users of the stores across the nation, not just in Parsons.
While some people in other states have pursued the complaint process, few had met with success in getting help at the city, state or federal level. Knight said when it comes to smaller rural communities, or small complaints, it is sometimes difficult to get the agencies enforcing ADA regulations to take on the complaints.
The complaint process will begin with writing a letter to the landlord and making another formal request. All those persons who wish to support the effort, who are themselves physically disabled in some way, and therefore personally affected, can sign the letter as complainants.
If that doesn’t solve the problem, Knight said Krull is required to prove how the change would be difficult structurally or a burden financially. The Kansas Attorney General’s Office will contact the proper person in Parsons’ jurisdiction, and the person will make a decision, and pass it on to the city.
“The city of Parsons then decides if it is something it should act on in accordance with the Kansas Accessibility Act, with the understanding they should try to do anything they can to make it not as difficult as possible for the owner,” Knight said. “If the city is not willing to act on the complaint, the next step is a federal complaint to the Department of Justice. The attorney general for the whole country will look at the complaint and require of the ADA to decide if it will act. It is hard to get them to act. If they decide not to, and their answer is we don’t have a complaint, there is one more step in the process, and that is to file a lawsuit based on ADA regulations and us as individuals with disabilities being discriminated against.
“A lawsuit can be filed at any point in the process,” Knight said, “but we really do not want to have to do that. That should be saved as a last resort. There are attorneys around the area, though, that have done accessibility work. Whether it would become a class-action suit is up to the attorney. Sometimes, just having multiple complainants makes a difference. It is absolutely a last resort. The same with picketing.”
Knight warned the group the entire process could go on for two to three years, as each step is tackled through the process, response times to each level of complaint is waited out, and appeals are filed and handled.
“You all have to be willing to stick it out,” Knight said, to which those present agreed they were ready to do.
Additionally, should the complaint reach the level of a lawsuit, Knight told those present: “In cases like this, they almost never award money to the complainants. That shouldn’t be your primary focus anyway. It should be the obvious problems that need corrected for accessibility. If you’re in it for money, you shouldn’t be. That is not our purpose.”
Read more: The Parsons Sun - Group hopes to make two stores ADA accessible