Unreasonable Accommodation

The case against the Americans with Disabilities Act

Brian Doherty from the August/September 1995 issue

(Page 2 of 7)

Kubach shows hints of Stockholm Syndrome when he talks about how helpful the local disabled activist group who challenged his diner's four front steps were in explaining to him what he would have to do to satisfy them. "Outside of the fact that it was through litigation, they've behaved in a favorable way," he says, sounding weary and beaten.

"It was difficult to get a real handle on what was required. I attended conferences in D.C. with top officials of Justice and different departments responsible for overseeing the ADA, and in front of several hundred people they admitted they were unclear about the direction things would go," he says. The specific meaning of many ambiguous phrases in the law, such as "undue burden" and "reasonable accommodation," will have to be revealed through case law. But we don't have a lot of that yet--and it takes cases like Kubach's to establish it.

Compliance cost Kubach nearly a year and about $65,000. He was delayed by the harsh winter of 1993-94, which made the activists think Kubach was intentionally dragging his feet. But it was hard to build a ramp when the area in question is buried in ice, snow, and sleet.

The ultimate ADA goal of complete, unhindered access with no need for any assistance still isn't met at the Melrose Diner. Given the building's stainless steel exterior and 60-year-old structure, a complete retrofit was impossible. There are still, for example, no barrier-free paths to the bathrooms inside.

And for all Kubach's expense and trouble, no hugely pressing social problem has been solved. Previously, says Kubach, "the problem of the disabled came up infrequently, but they were usually coming with people who could bring the wheelchair up the stairs, or we could send busboys out to get them who could lift them up. But it wasn't considered satisfactory to send people out to lift them, or bring them through the kitchen." Hence the lawsuit.

Restaurateur Blair Taylor isn't as sanguine about his experience with the ADA. He owns the Barolo Grill in Denver--"a very high profile, upscale, Jags-and-Rolls-Royces type of Italian restaurant in an expensive shopping district called Cherry Creek." As we talk the week before Valentine's Day, he is interrupted by nearly a dozen phone calls within an hour, seeking reservations for Valentine's Day. The Valentine's Day reservation book has been packed for a couple of weeks already.

Taylor is "a 40-year-old yuppieish kind of white guy. I'm a safe, wonderful target for these things." "These things" for Taylor mean nearly two years of legal conflicts with both the Justice Department and the city of Denver that ended up costing around $100,000 in construction and legal fees.

Taylor's troubles started in December 1992, just after opening the Grill, with a phone call from the DOJ. "Apparently they had been peering in during construction, and noticed we hadn't done some work we should have done. They told me they were investigating complaints for noncompliance," he says. He wasn't immediately responsive: "The first week of running a new restaurant isn't when you have a lot of free time." Taylor insists that he could take a walk from his restaurant and find 40 businesses in worse ADA shape than his was. He thinks he may have been under surveillance because of complaints against the former owner of a restaurant in the location, but "never can I get a specific answer from DOJ. They'll just say, 'No, Mr. Taylor was a horrible person.'"

Not exactly a horrible person, but DOJ civil rights lawyer Kate Nicholson, who worked on the Barolo case, does call Taylor "very difficult." She denies any malice or example-making, stressing that Taylor made continual promises to make changes by given dates and missed them all. DOJ isn't generally quick to sue, she says.

DOJ was unhappy with the four-inch step up to the door of the Barolo Grill, even though parking valets would always be available to help wheelchair users over the hump. Justice Department enforcers also didn't like the 11-inch raised platform in the back of the Barolo, with nine tables in addition to the 17 on the main floor.

A ramp to the platform was built, destroyed, and then rebuilt in response to Justice's complaints. The first time the ramp wasn't long enough for DOJ's very detailed building standards. The ramp is now the requisite 11 feet long and 41 inches wide to navigate a 11-inch rise, costing Taylor three tables worth of space in his usually sold-out restaurant.

The front ramp created a whole new set of problems, since it violated Denver city ordinances and required variances. "I said, 'I promised the federal government I'd do this ASAP, and city law won't let me do it?'" says Taylor. "It was an eight-and-a-half month process through various city boards.

"The federal government at the same time are saying, 'Faster, faster.' They'll say Mr. Taylor went back on his word several times, but the city wouldn't let me keep my word." DOJ's Nicholson was uncertain of the details of Taylor's problems with the city. All she knew was, he was violating the law and wasn't quick enough to remedy things.

By February 1994 Taylor had city permits for his ramps, bathrooms, fire alarm, roof drainage, sanitary water waste management tests, new air systems, and strobe lighting--"a tremendous number of irrelevant things that were at bottom about putting in two ramps." The DOJ went ahead and sued anyway in April, since they still had some complaints.

"They're demanding a $50,000 fine, the maximum for a first-time offender. And the price tag to go into federal court is very expensive anyway. We're forced to go to a settlement conference. I say that I'm in complete compliance, and if I can just pay a fine I'd like to go home."