Folks,

Sorry to lead with such a "muckraking" title, but I need your help.

I'm working up a case to sic some hounds of investigative journalism upon a group that has allegedly done some damage to us. These individuals are disabled-access activists that apparently not only seek out targets to sue for ADA access issues, but apparently seem to run what can be called a form of "extortion" on the side.

The way this apparently works: a "disability access consultant" approaches an institution, often a non-profit such as a private museum or cultural group, and offers their services as consultants to address ADA issues and the like--for a fee, of course. Usually, this offer is rejected, either because the group cannot even afford these fees, or because the group believes or has been told that they are exempt from such issues (say, because they are in a historic property, or because they rent from a church, city park, etc. and can therefore pass on the responsibility). Said consultants, or "differently abled" friends/cohorts of theirs, then proceed to visit the the place, find every possible nit to pick regarding access, and then file a lawsuit against the institution to force the changes and/or shut it down.

It's apparently an "open secret" that one of the individuals offering his services as a "consultant" in this field is a railfan (or at least former railfan) who has made "transportation accessibility" his specialty, and transit operations and rail museums his target. According to a well-placed grapevine, this individual has brought suit against at least one major railroad museum or tourist railroad--and won, forcing expensive alterations to the operation and the end of at least two services formerly enjoyed by the public. (I will leave out the allegations of judge-shopping, since I do not know the specifics of the case.)

Apparently there is some considerable leeway in precisely what ADA actually covers. It used to be common knowledge that if you accepted as much as one cent of public money, you had a big honkin' ADA-lawsuit target on your back. From the descriptions of some of the recent suits I've heard discussed, it's apparently become broad enough that if you even invite any member of the public on to your project/facility, or get as much as one penny from anyone else as a donation, you're a target.

The situation is sad enough that I asked one worthy rail preservation resource exactly why they were, for all intents and purposes, operating "under the radar" with no apparent publicity (hell, I've seen illegal drug markets operate more openly). The individuals in charge came right out and named the "consultant" individual by name as the reason. "If we publicize our existence, that guy is going to come in and sue our socks off, just because he can." The operation in question is waiting for the day--now long postponed--when they will have a promised new (albeit also historic) location/facility made available to them, which will address the ADA issues upon rehabilitation.

I spoke with another individual who has been the "victim" of this group, also facing shutdown just from the legal bills, never mind the costs of adapting the church basement they use as a folk music venue. "We try our best to accommodate them, and they cry that it's 'humiliating' and 'non-compliant'. These people are totally unhappy with the lot they've been handed in life, and their goal is apparently to make sure everyone else is as unhappy with their lives as they are," she said. (The tragic part is that, politically and socially, this operator is probably the best ally for social justice and equality these activists could ever find.)

Actual ADA issues aside, it does appear that I have managed to find a form of legally sanctioned "extortion" in operation here, and I am preparing case studies to hand off to investigative reporters in my area and elsewhere. In theory, if the facts of this case match our suspicions, depending on the scope of the operations of these "consultants", this is theoretically a story that could stretch to national media. (I have a dog in this fight, as the "rail consultant" apparently bases his operations in my area, and thus I can get at least local media interested.)

If you have had any experiences along these lines, I'd appreciate hearing from you. I can be reached via private message here, or by e-mail at LNER4472 [the "at" sign] bcpl.net.

I think I remember reading of something like this on the Park Trains list a while back. I believe it involved one of the 15" gauge, 5/12 scale narrow gauge lines in California, which had a handicapped-access car already, but a wheelchair-bound patron brought along a camera crew anyway to film a damaging report. Ask on the Park Trains list for more information.

I disagree. There are many reasons why any place open to the public should be hadicapped accessable.

A. Just think of the lost revenue at the gate, if you charge admission. Not just the handicap person is not going to come to your facility, but their friends and family will not be coming also.

B. Many of us are approaching an age, or by accident where we, yes we, are going to need to use the handicap facilities. Perhaps you might be unable to participate in your own place of rail fan or preservation. Just look at the average age of the membership in the National Railway Historical Society. I know members in my local chapter that need help when rail events are staged.

C. Perhaps you can apply for funds or a grant to help get your facility open to all. Get out there and look. You might even find some older handicap person with funds to donate. All you have to do is ask.

D. As a volunteer at the Museum of TRansport, I know from experience, that this is a big issue, and the Museom is adressing the issue. Yes a lot of planning and money goes to making the Museum grounds and exhibits open. This generates a lot more good will than bad feelings all around. Open access at our insitution means that older people with a history in transportation can come in an share their experiences, items, photos, paper history, etc., that then becomes part of the Museums collection and knowledge.

E. For those places that don't have the funds or resoarces to provide open access, I would imagine that they don't have the money for safety items either. In that case, perhaps the facility should be thinking of closing. And the assets turned over to some thing that has the money for access, safety, preservation, etc.

F. Finaly, When you deny some one entrance, you are going to generate a lot of bad press. Is that the way you want to be remembered by your audience?

In this case the idea of accessibility as legally mandated by the ADA (Americans with Disabilites Act), and generally good visitor accessibility are separate from what Sandy is asking about, the use of this law by persons via law suits and threats of law suits for personal enrichment, or to further their agenda

As for the first issue, the historic nature of our equipment and buildings is acknowledged in the ADA. Historic buildings and railroad cars are exempt from some of the criteria, if instituting that criteria would alter the historic fabric. Having official acknowledgement via a listing on the National Register (or the equivalent state or local register) helps in these situations. But the exemption does not include things like your modern bathrooms, your parking lot, or visitor paths.

Good accessible design makes your site much more welcoming for all of your visitors. Strollers use ramps and paths (think Thomas). Many older guests may be having trouble getting around and a paved path is much easier to use. Good bathrooms are basic to any facility that welcomes the public.

The ADA goes well beyond the basic infrastructure such as ramps or other systems to allow wheel chair access and parking places with blue signs. For example, generally it is unacceptable to have the ramps located away from the main entrance. To put the ramp at the back of the building makes the user a second class citizen. (This criteria is dropped for most historic buildings, if it would alter the structures façade.) Away from museums, having a restaurant, with multiple levels, and only having access on one or two of those levels could be seen as a violation, even if there were some accessible areas included. Having displays that were too high to be viewed from a wheel chair might be a violation. (they also probably don’t work for a child)

It is the gray areas that are the problem. Here in California, there is a group of activist and lawyers, who have been very active, suing many businesses, not over the basics, but over issues of absolute access to all areas, or emotional impacts of poor (but probably technically legal) design. I suspect this is what Sandy is referring to. Some of the individuals involved are committed activists, but others are bottom feeders.

Some years ago the California State Railroad museum was sued by one group, over access to the cabs of visiting locomotives during railfair. I understand that the State eventually won that case, but for a time, cab tours (without a significant investment in ramps) were in jeopardy at California sites.

I suspect I know the principal that Sandy is referring to; I used to work for the only organization to bat .900 against him on a particular complaint; and when he appealed, he lost the tenth point. It had to do with access to a commuter train, which had been painfully and expensively put into compliance already. His tack was that his class could not operate the emergency exits. As the Code of Federal Regulations said that anything that the FRA claimed as their own was off limits to ADA, he eventually lost on all of his points.

However, this individual was key in the retirement of the historical Baltimore and Ohio HO train layout on the second floor of Mt. Clare Station. And he has generally been sucessful everywhere else he has gone in Maryland.

Steven Zuiderveen

Jim,

I don't think Mr. Mitchell is launching into a toal indictment of the ADA or the benefits of it. What he is speaking to are pedatory lawsuits. If you are a museum or small business owner and get sued, you have to pay the other side's legal fees, etc. The problem appears to be most endemic in California and the Northeast. Here are some links that explain the problem.

This one is a .pdf document from the California Chamber of Commerce

http://www.calchamber.com/biz%20issues/2005/summaries/05-ADALawsuitAbuse.pdf

From Citizens Against Lawsuit Abuse
http://www.losangelescala.org/newl49new.htm

From the San Diego Union-Tribune:
http://www.signonsandiego.com/uniontrib/20050408/news_lz1e8poochlgn.html

This is a subject that goes round and round in preservation circles in general, so some of the pertinent information developed by other groups is useful to note.

First, the Department of Justice's ADA website:

http://www.usdoj.gov/crt/ada/adahom1.htm

The National Trust for Historic Preservation, in partnership with the National Alliance of Preservation Commissions and Historic Windsor, received a grant from the U.S. Department of Justice to develop a training course which provides basic information on the ADA and its effects on historic buildings and facilities.

The result, entitled "A Self-Guided Training Course for Historic Preservation Commissions" is available for download from the National Trust's website:

http://www.nationaltrust.org/help/disabilities.html

Forewarned is forearmed, as they say...

Best Regards,
John Isaksen

Let me just state for the record:

I qualify for ADA considerations.

I'm hearing-impaired, by legal definitions. I need a hearing aid.

However, having said that, I'm not about to sue a movie theater because their "closed captioning" is 1/2 inch too short, even if I request its services.

I'm the guy who waits until the movie is released on DVD with closed captioning. I'm also the guy who, if/when I'm on crutches. drags myself up on the railroad car by my teeth if need be.

The SOBs in question here are, indeed, as Steve Z. says, the guys who put the second-floor model railroad at the B&O Museum into the history books--and also their research/reference library. How they still get away with having offices up there (if indeed they still do), given this plaintiff's past record, is beyond me.

There's an individual of my acquaintance who would literally lust for the opportunity to shove this "principal" in front of a Metroliner. The only problem is, there isn't enough on the public record to make any jury acquit him/her. Yet.

This discussion is clearly not about the ADA. What it is actually about is the act of "Barratry":

The Real Life Dictionary of the Law by Gerald and Kathleen Hill Publisher General Publishing Group
Taken from law.com

I have several family members who are disabled either by age or happenstance and I sit on some review boards that deal with the rights of the disabled. I have been accused more than once of being overzealous as an advocate when I have pushed for what I, as a non-differentially-abled person, thought were perfectly reasonable accommodations for those who are not quite as fortunate. Much of what is required by the ADA benefits the rest of us and is the kind of common sense thing that we should not have needed a federal law to mandate.

Having said that - I believe that there is a point where even with the best of intentions some disabilities simply cannot be accommodated by particular businesses or facilities and they just should not be compelled to spend their money to make the accommodation, or shut down, especially when there are more reasonable solutions.

I know of a residential facility for the multiply handicapped which modified the lift on a wheelchair van so that it could lift the chair up from the van as well as lower it to the ground. The inspiration was actually the problem of how to get a particular resident onto a chartered PV for his sister's wedding reception. In theory an action could have been brought against the charter operator but that would never have gotten the gentleman into the reception.

The ADA was never intended to deny so-called "normal people" anything or to create an economic burden on commerce. It was intended to prevent the intentional denial of access and what was occasionally the outright abuse or extortion of the less fortunate. The rule of thumb is that you have to make a reasonable attempt to make a reasonable accommodation - not close down to everybody because there exists one person in a wheelchair which you simply cannot get up a flight of stairs. It is still very much in flux because it is only comparatively recently that medical science and technology have allowed people who would otherwise be bed ridden or dead to have some semblance of a normal life.

I have spent much of my adult life in the Service and I was an active volunteer firefighter for many years. The change from normal to disabled can occur in an instant. When you see the person in the wheelchair or on crutches or what ever you really shouldn't forget Bradford's words, that "There but for the grace of God go I".

The sad fact is that there is enough legitimate need for actions under ADA that those of us who occasionally have to enforce it cannot afford the type of action that Sandy has described here.

In the real world of railroads I have either observed or had to deal with various characters who have tried to use the various regulatory boards and the courts to grab property which did not belong to them. The real goal is to be bought off.

One of the better examples which the readers of this board may be familiar with are the "Northern Central" filings of last year where the protagonist tried to claim the entire line from York, including the light rail right of way and the trail, by virtue of STB filings. If he had not been nailed for several environmental violations having nothing to do with railroading it might have reached a point where it was cheaper to buy him off. There is a character in Northern New Jersey who has done some spurious filings and brought at least one frivolous suit in the hope of being bought off. He was last seen threatening to bring an appeal of the STB's refusal to give him trackage rights on the Southern Tier.

There was a period a few years ago when a number of trash companys filed for common carrier railroad status, usually using somebody else's tracks trains and crews, in the belief that they and the truckers who served them could evade environmental regulation.

The intent is generally two-fold. One is to enrich the attorney and the other is bring in some kind of economic benefit to which they are not entitled because it is cheaper for the other side than to fight.

The real solution is that when this fellow sues he has to be fought and that is expensive as a first cost and probably cheaper in the long run.

I was staying with some older friends in New England a few summers ago and I had occasion to drive my hostess to the local supermarket. She had recently had some surgery that resulted in her using a cane for a while. After letting her off at the door I circled the parking lot twice looking for a space and finally gave up and used one of the half dozen that were marked for "customers with children". A self appointed do-gooder who monitored the handicapped spaces came up and started chastising me about using that space when she had seen me let off the "old lady with the cane" and that I was supposed to wait for a handicapped space and where was my sticker? I shut her up by explaining that the lady was the customer and I was the child.

It’s all in the perception.

Its three in the morning and I have rambled long enough.

Mike Allen

The story has already made the wire services, but not with the railroad angle. I'm sure that not every newspaper picked up the report, so you still have a chance of getting published.

Can you post a reference please?

Thanks,
Mike Allen

Another resource created in the same DOJ program is AAM's book and training guide "Accessible Museum, The Model Programs of Accessibility for Disabled & Older People." (Full disclosure--I work for AAM in my day job). The title is avialable from the AAM bookstore at

http://www.aam-us.org/bookstore/detail.cfm?id=309

I recommend it highly--you will find many thought-provoking models and ideas here.

If you'll bear with me, let me sing the praises of accessible design as a form of enlightened self-interest for a moment.

I had a very interesting meeting on this subject a few months ago with the Japanese Association of Museums. Japanese museums are in the early stages of complying with new government mandates on accessibility, and they came to meet with AAM concerning accessiblity in US museums. Interestingly, it's not physical disabilities as we conventionally understand them that's driving the conversation in Japan. Instead, its the age profile of the Japaese population--with Japanese society aging rapidly, there is a very powerful constituency for improving accessibility for the elderly.

In practice, however, it all amounts to the same thing--elderly, disabled, or otherwise, the priniciple is universal access. By improving access for the disabled you not only serve an important part of your community, but also improve access for the grandparents escorting grandchildren, and young moms and dads pushing strollers--in short, for the key visitor demographics for railroad museums. Grandmom and pop have the day to take the little ones out--the kids will want to come see the trains, but the grandparents will make the final choice where to go. If your facility if friendly to the old and they have a good experience, they will come to see you again and again.

I have seen this unfolding at the B&O Railroad Museum that Sandy has mentioned. The B&O took the opportunity presented by the closure after the roundhouse collapse to totally rework their plant to improve accessibiliy. Now parents with strollers and grandparents with toddlers in tow travel freely into and out of the roundhouse, up ramps to and into the display cars, and on paved pathways out to the model trains and the display rolling stock in the yard. It's a quantum leap from where there were, and I am completely convinced it will pay dollars and cents dividends in memberships and repeat visits quite aside from having been the right thing to do.

There are, sadly, folks who do abuse the ADA law to prey upon organizations. A friend of mine, who is disabled and whose late wife worked as a consultant on ADA matters, first informed me of these folks and found them quite aggrevating.

The best defense is for organizations to know the law. Working as a designer and working on ADA issues for a museum, I have found that some organizations are frightened of ADA, mostly because they do not understand the law. Someone needs to take on the task at each group of understanding it and how it impacts them. Also, they need to consult with legal counsel to understand how to avoid becoming entangled in such a suit.

In my experience, someone who simply sues without first communicating their concerns to the organization and trying to find some compromise or make their concerns heard is likely NOT worried about equitable access but is instead doing a shakedown.

The beauty of the ADA guidelines is that it ulitmately benefits ALL visitors, even those who are fully abled. In my profession this is called "trans-generational design" and has proven time and time again to have advantages for everyone. It would be a shame if these abuses of the system would come back to discredit it to the general public and museum community.

If that request was directed at me, I'm sorry I don't remember the date of the newspaper article in the Philadelphia Inquirer. It did sound like a "protection racket", "pay me or your windows and knees will be broken, and you'll get sued".

Associated Press article from the Fort Wayne Journal Gazette.
http://www.fortwayne.com/mld/journalgaz ... 266147.htm