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The Good, The Bad, and The ADA -

Scene One. ADA : The bad

Narrator: (as if on a Radio Show): Well we hope that you enjoyed the latest adventures of Little Orphan Annie. Tune in next week when Annie travels to Philadelphia and tries to persuade Daddy Warbucks to buy a winning quarterback for the Eagles.

Annie: (as if on Radio; singing as to the tune of “Tomorrow”): The pass will get caught, Tomorrow, Tomorrow. Bet the Daddy’s dollars we’ll stop choking tomorrow, come what may‼

Narrator: But now stay tuned for the popular Western: The Good, The Bad, and The ADA.

Sound – Western “Wan Wan” Sound to set the scene.

Narrator: (in the tone of the Twilight Show) Join us in a parallel universe in the 1800s, when the Americans with Disabilities Act existed, but cars didn’t. The scene, a plush law office in Old California in the firm of ADA and ADA. Join Attorney Ada talking to her favorite client, Rusty- Polsky.

(Attorney Ada picks up the “phone” (a can attached by a very long string) to call her favorite client, Rusty Polsky, who is paralyzed and sits in a wheelchair. Both have cowboy hats and bad southern accents.)

Sound: RING RING

Polsky: Hello?

Ada: Rusty, my friend, my favorite (and most profitable) client… how the heck have ya been?

Polsky: Can’t complain much – haven’t been hit by Wells Fargo Carriage in at least 10 years. Of course, as you know, it left me unable to ride them horses any more. But the wife wrangled me a special Chair on Wheels.

Ada: That’s great. Havin’ any more problems getting the Chair on Wheels into the so-lon?

Polsky: [rubbing bald head] not much need for a so-lon up in these parts.

Ada: Oh my! I mean getting your Chair on Wheels into the Sa-LOON.

Polsky: Nope, not since we filed suit in front of that hanging judge. They shaped up right fast. And all those suits afterwards, yeah ha, them settlements have made it mighty comfortable in these parts. Even got me an attendant in the outhouse to hand me a towel and a mint after I takes care of my business.. And of course, I am famous in these parts as the “Sheriff” who cleaned up all of these arch-e-tect-u-al barriers. Who wudda thought I would have visited 223 saloons in just 2 years.

 

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Ada: Well, you have traveled pretty quick. [They share a maniacal laugh] But to be honest, there hasn’t always been changes to the buildings in our settlements. Not that – that’s all that important. Sometimes it’s just an admission and some coin for me and you. Yuk yuk

Polsky: Ha! You know that, and I know that, and my bank account knows that, but the public thinks I am the new sheriff in town. (pause) So what can I do you for? Do you need to tell me about a place I have been? Or tell me a place I hadn’t been to?

Ada: You know me to well. So my cousin was in Little Falls (Ada excitedly walks around her office and gets pulled by the string on the can, when Polsky pulls back, she falls) Kind of. (dazed) My cousin was in NJ last week, going to the rodeo way up north in Little Falls, NJ. His daughter needed to use the restroom and they stopped at one of those little’l roadside ice cream stores and...

Polsky: Let me guess, not enough handicapped horse hitching, handrail was an inch too high, and the ramp was the wrong incline? (Laughs)

Ada: (Laughs together)... We make a great team, Rusty.

Polsky: Should I hitch up the wagon and head on up and speak with the owner?

Ada: Nah, we don’t really need to do that. You know whatca need to say.

Polsky: Good. I hate going scamperin’ up to New Jersey. They talk funny in the North and I get all confused by the jughandles. But Ada, do you even do all that fancy practicing up there in New Jersey?

Ada: Ain’t no concern of yours. I will get a local counsel, and we can do a whole bunch more work up there, law’s pretty universal – and because we settle all of our cases, you won’t never have to deal with no jug handles. Someday, law abiding citizens of this great nation of ours will be allowed to make a normal left hand turn, in New Jersey.

Polsky: Well, are the ADA compliance laws the same in NJ?

Ada: The federal ones, yes. But state law can differ.

Polsky: The heck you say! How so?

Ada: Don’t you worry your shinny little head about that. We are targeting the low hangin’ fruit: small business. They will just comply with whatever standards we set because its cheaper for them to settle than to go to court. They don’t, after all, want to be forced out of business on litigation costs.

Polsky: Genius.

Ada: Why thank you. I do owe some thanks to you.

Polsky: What’s that ma’am?

 

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Ada: You have been such a good client. Just want to give you a dose of gratitude. You have made me a partner here and a very rich woman.

Sound: A few bars of “Money.”

Polsky: (looks perplexed as to where the music came from) Just remember to send me my monthly “referral check.” Oh Yeah, and my fee, the fee for signing the verification for the complaint.

Ada: I would never forget. A partner always pays her debts.

Polsky: Ha, oh I almost forgot. What ever happened to the Burrito Bell case in Frisco didn’t that judge accused me of “extortion” and being a “hit-and-run plaintiff”? Vexatious litigation my left toe! I am an agent of change. Hash marks in horse stations cannot be faded. The nerve of that judge.

Ada: Ahh, that cranky ol’ judge will probably get reversed by the Circuit Court of Appeals. It’s not your fault you travel a lot and that these business can’t seem to read the law and be compliant with the requirements under the ADA.

Polsky: That’s right. I am a crusader. Them papers call me the “Sherriff” of the ADA. And it’s okay if by being the Sherriff, that I buy the little lady at home a few bobbles to keep her happy.

Sound: A few bars of “I Shot the Sheriff.”

Ada: (Ada looks perplexed as to where the sound is coming from) I should warn you though. There is potentially an order banning you from ever filing another ADA lawsuit.

Polsky: To hell with that fella. Buzzards gotta eat, same as worms. What, ban the “Sherriff.” How can you let that happen? What will we do?

Ada: Umm… you have any disabled friends looking for extra cash? How bout that marshall that got shot bringing in the Ed Chacker gang? He needs drinkin money, don’t he?

For the moderators: Jarek Molski (“Rusty” above) called the “Sheriff” is a disabled man known for filing hundreds of lawsuits against small businesses for violations of the Americans with Disabilities Act. Since a 1985 motorcycle accident that left him paralyzed, Molski has filed over 400 lawsuits against California small businesses due to lack of handicap parking, misplaced handrails, and other Disabilities Act violations. Molski has received heavy criticism over his lawsuits. In 2004, a Federal judge accused Molski of extortion, calling him a "hit-and-run plaintiff", and barred Molski from filing further lawsuits. Moski appealed the judge's order to the United States Supreme Court, but was denied after they refused to hear his case. All of Molski's lawsuits have been exclusive to small businesses for violating the Americans with Disabilities Act. Of them, only one went to a trial, while the rest have been settled out of court. San Francisco attorney, Tom Frankovich has represented Molski in 232 of his cases. He is estimated to have earned over $10 million from Molski's cases.

 

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SCENE II: Clint Eastwood’s Discount Chairs on Wheels Emporium

Narrator: Well, welcome back, cowboys and girls, to The Good, the Bad, and The ADA.. Join us now at Clint Eastwood’ Discount Chairs on Wheels Emporium -- a sleepy mainstreet store in Westtown, USA. Clint Eastwood’ mission is to help the uninsured disabled folks in Westtown’s community obtain wheelchairs, errr Chairs on Wheels, at a reasonable price. Clint Eastwood uses the wealth he’s amassed as a bounty hunter to operate the establishment at a razor thin margin and to make salad dressing with Mr. Paul Newman.

As the scene opens, Attorney Ada, her associate, and Client ___, walk into the store and looks around (client needs a disability – client should be on crutches). Clint Eastwood is behind the counter near the cash register.

Clint Eastwood: Howdy strangers. Need some help? Or do you feel lucky?

Associate: Not yet, thanks.

Clint Eastwood: Ok. Well you just holler if you need anything.

Attorney Ada: You betcha!

Attorney Ada takes a tape measure out of her purse and begins measuring the front door.

Annie Oakley: Hmm. That’s no good.

Associate: Why? What’s the issue?

Attorney Ada: Well, there is no issue, that is the problem. This door is in compliance.

Attorney Ada then walks over to the counter and measures its height.

Attorney Ada: Jackpot‼ --that’s a problem.

Clint Eastwood: (Confused.) Are you sure I can’t help you with anything miss?

Attorney Ada: Actually, you can. Do you have a public restroom, and if so, may my client, ___, and I please use it?

Clint Eastwood: Sure we do. It’s right over there. (Points to door) Help yourself. (dryly) Works better, one at a time.

Attorney Ada and client walk over to the restroom, walks in and leaves the door open. She begins measuring things.

Clint Eastwood: Miss if you’re gonna to use the restroom, I’m gonna have to ask that you close the door.

Attorney Ada: We’ll be done in a sec.

Clint Eastwood averts his eyes. Attorney Ada walks out of the restroom and back up to the front

 

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counter.

Clint Eastwood: Anything else I can do for you ma’am? Clock’s ticking, ma’am, and I’m only getting older.

Attorney Ada: Yes, actually there is. (Pregnant pause)

Clint Eastwood: …and that is???

Attorney Ada: (self- righteously / hands on hips) You can bring this establishment within compliance of the Americans with Disabilities Act!

Clint Eastwood:: What in the Sam Hill are you talkin’ about?

Attorney Ada: The ADA Checklist for Existing Facilities – read it and weep!

Attorney Ada hands Clint Eastwood a copy of the ADA checklist.

First of all, the handicap ramp in front of your building…

Clint Eastwood: What a about it?

Attorney Ada: It’s only 35 inches wide.

Clint Eastwood: So?

Attorney Ada: So, the ADA measurement guidelines require handicap ramps to be at least 36 inches wide.1 My client is disabled and he needs access.

Annie Oakley: Yeah!

Clint Eastwood: (exasperated!) He’s on crutches, ain’t in no wheelchair!

Annie Oakley: If you are going to make a fuss, I will go home and get my wheelchair.

Attorney Ada: See, not accessible!

Clint Eastwood: Well, we’ve been in business for years and never had any complaints. Customers wheel themselves in and out of here every day without a problem.

Associate: (pulling Ada aside) I am confused, I don’t see a problem over the inch. Didn’t our client tell us that the average wheelchair span is 24 inches? What’s the fuss over one inch?

Attorney Ada: Given ‘em an inch, they’ll take a mile! (to Clint) What about the front door of this place?

                                                            

1 ADA Checklist for Existing Facilities, Version 2.1, p. 4 

 

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Clint Eastwood: What about it?

Attorney Ada: It’s full of violations! For starters, the handle is 49 inches high -- one whole inch low AND it took a whopping 6 lbs of force to open it – not the requisite 5 lbs!2

Associate: (aside with Ada) It didn’t seem heavy to me. Clearly disabled people have been able to get in an out here. Why are we doing this?

Clint Eastwood: (clears throat) Ahem. Again, never been a problem ma’am.

Attorney Ada: Oh, it will be when our client hauls you into court…and so will the counter you’re standing behind—it’s 36 inches high when it must be between 28 and 34 inches.3 And don’t get me started on the outhouse!

Clint Eastwood: What’s wrong with the outhouse??? We went to great lengths to make it handicap friendly!

Attorney Ada: You call those great lengths? Everything’s ½ inch to 2 inches higher than it should be—the sink, the door handles, the soap and paper towel dispensers…and there’s insufficient clearance for a full-sized, motorized wheelchair to adequately maneuver in there.4 It’s a total mess!

Clint Eastwood:: Hey listen, I’ve seen a total mess in that bathroom, and what you’re describing ain’t it. We aren’t even required to have a bathroom, this ain’t no eating establishment. What’s all this about anyway?

Associate: I am sure Mr. Eastwood here, hasn’t gotten any complaints.

Clint Eastwood: What are you fussing over all these minor details.

Attorney Ada: I’m an attorney that represents the disabled and sues business like yours for violating the ADA by failing to accommodate the disabled.

Clint Eastwood: It's a hell of a thing, suing a man. Take away all he's got and all he's ever gonna have.

Associate: (pleading) Clearly Mr. Eastwood is trying to comply with the spirit of the law.

Attorney Ada Trying is the same as failing.

                                                            

2 Id. at p. 7 

3 Id. at p. 10 

4 Id. at 12‐14 

 

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Annie Oakly: [Improvised line]

Clint Eastwood: Failing to accommodate the disabled?!? My whole business is accommodating the disabled! You think you’re gonna get out of this with a fistful of dollars? Go Ahead, MAKE MY DAY!

Associate, Annie Oakly, and Ada exit the shop. Clint sits with his head in his hands.

Annie Oakly: (to Clint) Well, I will be seeing you. (to ADA) Au Rev-our, Ada; Associate (tip hat, once ADA turns away, pick up crutch and throw them over your shoulder)

Attorney Ada: Happy trails, Annie!

Associate: I don’t get it. That man is running a business that caters to the disabled. I saw his employee of the month wall, and there are disable people working here‼! What are we going to accomplish by suing him? I’m not sure this is what I shined up for when I took this job.

Attorney Ada: Not what you signed up for? You signed up to work for me. Didn’t you visit my website before you interviewed?

Associate: Yes, I pulled my horse right up to it. ….. (pet horse) But it said that you specialize in vindicating the rights of the disable, and making properties accessible. Not that you go after well-meaning business that are actually promoting the rights of those with special needs and making real changes in their lives. That man consistently employs the disabled. Do you know how hard it is to get a job if you have a disability? Unemployment of the disabled is at staggering 34%. What kind of law is this?

Attorney Ada: Listen, I don’t make the laws. I just enforce them. Ain’t nothing wrong with earning an honest buck. Violations are black and white.

Associate: And the law is neutral?

Attorney Ada: That’s right. And as long as we follow the ethical standards, there isn’t anything wrong with being an advocate. Isn’t anything wrong with getting paid for your work. You went to law school, right?

Associate: Of course, you know that!

Attorney Ada: Well, Don't let your yearnings get ahead of your earnings.

 

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Third Vignette – The Good

Narrator: Ladies and Gentlemen, join us as we continue with our program: the Good, the Bad, and the ADA. Sponsored by -----the law offices of Dewey, Cheatum, and Howe. Providing fictional representation and hackneyed jokes since 1826. With offices in Philadelphia, Intercourse, Bird In Hand, and Blue Ball, Pennsylvania.

In a Westtown Saloon, a Lawman, a Blind man, and a one armed man walk into a bar. And the bartender says : .

Sound: WAN WAN WAN (western sound)

Bartender: (to blind partron): What ya’ have’n?

BP: (to bartender): What do you got?

Bartender: (gruff - bartender is obviously annoyed) Drinks, shots, and beer.

Law Man: Barkeep! I need a drink

BP: (points to law man) What’s he having?

Bartender: A Res Ipsa Loquitor.

BP: What’s in that?

Bartender: It speaks for itself.

BP: You got any specials?

Bartender: Slum gullion.

BP: What’s in Slum gullion?

Bartender: It pretends to be tea, but with whiskey. It’s cheap. (mean) Order something or hit the road.

BP: Okay, I’ll take that. (Bartender starts making slum gullion)

 

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Law Man: I wouldn’t drink that, it’s made with whiskey, bacon-rind, a squeeze from the old dish-rag, and some sand. 5 Probably offends the health code, even out in these parts.

Bartender: (returning with drink) Ahh the whiskey will kill everything, drink up. Three bucks.

BP: (to bartender pushing the drink back angrily) I’m not drinking that. Just give me the whiskey, straight. (referencing law man) Get him one too. (to law man) Thanks, I can’t even order a drink in my local saloon; next one is another 100 miles from here.6

Outlaw: (to Law Man – looking fierce) You some sort of law man, knowing about that health code and all?

Law Man: (to outlaw) I’m not the Sheriff, if that’s what you mean. I’m a lawyer. I do mostly disabilities law – helping out folks like this good man right here. (referencing BP)

Outlaw: (suspicious and mean) Did you sue Clint Eastwood?7

Law Man: No. I’m a lawyer, but….

Outlaw: But that’s what you do? Going around, suing all the business men for violations? Man, you’re worse than me.

Law Man: What did you do?

Outlaw: Ahhh …. (decides against answering and pulls out and plays a few notes on a harmonica)8

                                                            

5 Mark Twain, Roughing It. 

6 Based on Camarillo v. Carrols Corp., 518 F.3d 153 (2d Cir. 2008) holding a legally blind patron had standing to sue several fast food restaurant in New York under Title III, because of the patron’s past injuries under the ADA for the restaurants’ failure to ensure effective communication of menu items. 

7 ADA Notification Act: Hearing Before the Subcomm. on the Constitution of the H. Comm. On the Judiciary, 106th Cong. 49 (2000). 

8 Harmonica Man from Once Upon a Time in the West. 

 

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Law Man: It’s not like that. The Americans with Disabilities Act, the ADA, was enacted in 1990. A main purpose of the act was to allow people with disabilities, like our friend here (referencing BP) to be able to participate in the same life activities as everyone else.9 In other words, the act intended this man to be able to walk into his local saloon and order a drink without having to worry about drinking the dish-rag. It’s the Bar Keeps’ burden to make this place accessible to everyone.10

Bartender: (to Law Man) Watch it, Law Man. I’m a quick draw.

Outlaw: (to Law Man, referencing Bartender) I don’t trust him. How can you trust a man who wears both a belt and suspenders? The man can’t even trust his own pants.11 (to Law Man) I don’t like you either. You still sound like one of those men who sued Clint Eastwood.

Law Man: I’m not the scoundrel here. Twenty four years after the ADA’s enactment, violations are still widespread.12 Studies show that the enactment of ADA without private enforcement – without lawyers like me – would not have significantly increased the percentage of people with disabilities who are able to participate in day-to-day activities.13 Many experts argue that the requirement for public accommodations under the ADA is very much under enforced and we need my type of private enforcement.14

Outlaw: I don’t know nothing about no experts. (rests his hand where his holster would be) I think we should settle this the old fashion way, with a draw. (starts shooting) Get to skipin’ y’all!

                                                            

9 Samuel R. Bagenstos, The Perversity of Limited Civil Rights Remedies: The Case of “Abusive” ADA Litigation, 54 UCLA L. Rev. 1, October 2006, at 3, citing Samuel R. Bagenstos, Subordination, Stigma, and “Disability,” 86 Va. L. Rev. 397, 419 (2000).  

10 Id. 

11 Line from Once Upon a Time in the West 

12 WE NEED SOMETHING MORE RECENT THAN 2006  

13  Bagenstos, at 4, citing Michael Waterstone, The Untold Story of the Rest of the Americans with Disabilities Act, 58 Vand. L. Rev. 1807, 1832‐34 (2005). 

14 Bagenstos, at 4, citing Ruth Colker, The Disability Pendulum, 188 (2005); Waterstone, supra note 6, at 1853‐59. 

 

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Bartender: (to Outlaw) Hey, hold up y’all. (to Law Man) I know your kind (hit lawman on the shoulder to start a fight), this building was built over 100 years before the ADA, but when I took off those old swinging doors. A guy like you told me I had to make the new doorway a certain size under that ADA, so long as it wasn’t too difficult or with too much expense.15 (puts his hand on his holseter).

Law Man: Whoa, whoa, whoa! Hold on, we’re not going to settle this with guns! (stands up, hands in the air trying to calm the situation down) The focus always seems to be on us lawyers and the disabled folks filing cases, why isn’t the focus on the large number of businesses whose establishments are still in violation of the public accommodations requirement of the ADA?16 (to bartender – first looking at the doors and then at the bartender) That’s not you, right? You fixed those doors.

Bartender: (calmer, hand still on holster at first but removes hand while speaking) Yup, didn’t cost me nothing to get them up to code. My electric bill went down once I got rid of them old swinging doors. Isn’t there a better way to make establishments become compliant with the ADA, rather than having a bunch of lawyers and disabled folks bring lawsuits? Name one time this type of thing did anyone any good?

Law Man: Rosa Parks, the woman who would not give up her seat on the bus. After Ms. Parks was arrested for not vacating her seat, several leaders of the Civil Rights Movement felt she was the ideal person to place before the Court in an attempt to change the law. What is wrong with finding the perfect person to be a figurehead for a movement? In terms of becoming complaint with the ADA, There are a number of ADA specialists and organizations dedicated to promoting compliance and educating folks and businesses regarding the lawADA.

Outlaw: Yeah, you have seen an uptick in disabled folks coming in since you fixed them doors.

BP: (to bartender, a little agitated) That all sounds easy enough. How hard is it for you to tell me you are squeezing that darn dish-rag to make my drink? (Bartender becomes agitated again and reaches for holster).

One Armed Man: ( drunk, to bartender with his hand on his holster and says) I’ve been watching you for 8 months – those new door handles aren’t in compliance and it’s

                                                            

15 Bagenstos, at 3‐4, citing 42 U.S.C. §12182(b)(2)(A)(iv); . §12181(9). 

16 Bagenstos, at 5. 

 

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difficult for me to open the door.17 Whenever I should have had a gun in my right hand, I thought of you. Now I find you in exactly the position that suits me. I had lots of time to learn to shoot with my left.18 I’m gonna pump you full of lead.

Law Man: (stands up, hands up again) Hold on! No one needs to shoot anyone over cheap drinks or ADA violations!

Bartender: •It don't take no genius to spot a goat in a flock of sheep! Compliance with the ADA ain’t as easy as it sounds, there are barriers. Them there state laws conflict with the Federal requirements.19 Out in California, the state law required that those fancy curbed ramps have a one-half inch lip at the bottom, beveled at a 45-degree angle, but the ADA required that the curb be flush to the street.20 It is impossible for barkeeps to make a curb that follows both laws.

Law Man: Every trail has puddles, Son. Yes, there are complications. Unfortunately , the largest force making folks comply with the ADA are the lawsuits brought by aggrieved citizens with disabilities. But there are many organizations that will help you become compliant voluntarily.

BP: ` You are saying he don’t have to shoot the bartender to get him to fix the door handles?

Law Man: Yes.

One Armed Man: I still want to shoot the bartender.

Bartender: I object!

SOUND: I Shot the Sheriff.

                                                            

17 U.S. Small Business Administration, U.S. Department of Justice ADA Guide for Small Businesses, fourth edition, June 1999 at 8, available at  http://www.ada.gov/smbusgd.pdf (last visited November 30, 2014). 

18  Lines both directly from or slightly modified from The Good, The Bad, and The Ugly 

19  Becker at 96, citing Kim Kimball, ADA Fact Sheet. 

20  Id.