Activists irked at slow pace on disability access

Compliance considered flawed

enforcement viewed as inconsistent

Wheelchair users can measure the quality of life with a yardstick.

That's only 36 inches, but they need every one to pass through doorways or aisles and make U-turns whenever paths to life's pleasures and necessities are blocked.

For some wheelchair users, such as Marilynn Phillips of Hampstead, life is a continuing struggle to circumvent obstacles and gain access to dress racks and restrooms, bookshelves and knickknacks.

Phillips, 55, is a retired associate professor of English from Morgan State University and an accessibility activist. She contracted polio at age 2 and began using a wheelchair full time in 1987.

All she wants -- for anyone with a disability -- is to be able to shop and "have the right to be safe and have access to browse as much as any other customer."

The 1990 Americans With Disabilities Act guarantees that right, but compliance is imperfect and enforcement inconsistent, she said.

Disability activists are growing impatient, no longer content to wait for compliance.

ACCESS Maryland, a statewide civil rights group, filed lawsuits in July against Cafe Hon in Hampden and Bertha's Mussels in Fells Point, accusing them of failing to accommodate people with disabilities.

Owners at both restaurants denied allegations that they do not accommodate customers in wheelchairs.

The lawsuits marked the end of a five-week statewide campaign by activists against more than a dozen businesses, including the Mass Transit Administration, Good Samaritan Hospital, an Ames discount store in Baltimore County and a Burlington Coat Factory in Prince George's County.

Most recently, Neighbors In Need, a human services program in Carroll County that accepts donations of toys and clothing and operates a free holiday shop for the needy, spent more than $4,000 to move, under threat of legal action.

Phillips filed a complaint against the charitable nonprofit group with the Maryland Commission on Human Relations.

Dale Reid, a wheelchair user, activist and Sykesville attorney representing Phillips, said he would seek a court injunction to stop the holiday shop from operating in a basement of the Westminster Shopping Center because the 10,000-square-foot space was not accessible.

A settlement was reached when the shopping center's management company, Washington Real Estate Investment Trust, provided accessible ground-floor space in a vacant area on the main level.

Neither side won.

That space will no longer be available when the shopping center is renovated, and Neighbors In Need will have to move again, said Barbara Brown, program coordinator.

Phillips also was not happy.

"No, I'm not satisfied, since this case has been costly both financially and in time lost from my family and personal obligations," she said. "The Human Services Program did not comply with the law; rather it avoided being forced by a federal judge to move. Such an injunction could have jeopardized the program's public funding."

Activists have fought noncompliance in various ways, including filing complaints with local or state agencies, or filing lawsuits in state or federal courts.

State fire marshals and lawyers for the Maryland Disability Law Center said 36-inch access is inflexible with respect to main aisles in public buildings, but not necessarily to the distance between clothing racks.

"Fire marshals are not authorized to enforce the Americans With Disabilities Act," said Robert B. Thomas Jr., deputy state fire marshal. "If fire code violations exist, violators will be cited."

Allison Schraf, an attorney with the law center, said: "When the Americans With Disabilities Act was written, it was meant to help both sides. You can't force a store to limit its selling space."

In crowded stores, the general policy in Maryland is one of "reasonable accommodation." Clerks must offer assistance and bring merchandise to the consumer, Schraf said.

Phillips and Reid disagree.

A recent California court decision involving Macy's opposed the department store's contention that money would be lost if more space between clothing racks was provided and less merchandise was displayed, Reid said.

"Evidence showed sales would increase if access were increased," he said. "The Americans with Disabilities Act requires 36 inches for access to soft goods, such as clothing, if it is readily achievable."

Many retailers are not aware of ADA regulations and usually resolve complaints quickly, he noted.

"In the long run, the cost of renovation often is much less than defending the complaint in court," he said, adding a number of clients are no longer willing to live in a parallel society.

"They are forcing the issue, using demonstrations, boycotts, complaints and federal lawsuits to fight," Reid said. "You can't get a pass on civil rights."

Enlightened lawyers, Reid said, are beginning to advise their business-owner clients, for instance, that installing a 4-foot ramp for accessibility costs about $1,200 to $1,500.