Meet the folks working to make Minnesota more accessible — more than 30 years after the ADA

To the staff members at the Minnesota Council on Disability, making businesses and government facilities accessible to everyone is long overdue. It’s been 34 years since Congress passed the Americans with Disabilities Act. Executive Director David Dively, Operations and Program Director Linda Gremillion and ADA Director David Fenley say there is much still to be done.

From drivers illegally parking in spots for people who are disabled to business owners who are unsure what they can do to improve their facilities, the accessibility champions get several calls a week for help.

Eye On St. Paul recently visited their offices at Snelling and University avenues to learn more about why it’s taking so long to break down even some of the most basic barriers to inclusion. Disclosure: Because of multiple sclerosis, I often need to use a wheelchair. This interview was edited for length.

Q: Is it true there’s a debate between people who look at equal access as a right, but are forced to ask, and those who think people with disabilities seek privilege?

DF: Yes.

LG: Why do [disabled people] even have to ask? No one else has to ask.

Q: Why are there still so many inaccessible businesses and buildings?

DF: Well, enforcement is a big deal. The burden’s on you. You either have to sue or complain to the Department of Human Rights. There’s no proactive mechanism. ADA is 100% reactive.

DD: You have to get hurt or discriminated against and then you can try to fix it. But nothing happens proactively.

Q: Why is that?

DD: That is how we designed the whole system. What it means is that if a certain type of family, or employee or voter has the means to push it, they need to. And that’s not going to be true for everyone.

Q: We’ve written stories about the attorney who threatens to sue Mom and Pop businesses because they’re inaccessible. What does the ADA really demand of small businesses?

DF: You’re referring, I think, to Paul Hansmeier, who’s not the most upstanding dude in the world. That’s not to say the lawsuits were frivolous. Just because a lawyer is shady, doesn’t mean there are still not barriers and discrimination happening. Initially, the burden’s on the individual with a disability. I’m pretty sure that was a compromise [in Congress]. How did they get the U.S. Chamber of Commerce on board? How was it bipartisan?

LG: [Former] Sen. Tom Harkin [Iowa] talked about how they had to take enforcement teams out in order to pass the legislation.

Q: So, they had to remove teeth in it to get it passed?

DF: No proactive teeth. It’s more of an administrative fix. Where a health code is proactive, inspectors come out and say, your food’s cold, there’s no rat poo. You pass and you can now serve food to people. This is reactive.

DD: There’s a public interest in ensuring safety, health, hygiene, spreading disease, all those things. We don’t place the same value on a smaller group of people’s lives.

Q: What percentage of people need to use a wheelchair to get around?

DF: You’re looking at 27% of the population has a disability as defined by the ADA. That’s everything from things like anxiety and ADHD, alcoholism — all the way to sensory disabled, quadriplegic. From ages 15 and up, the percentage of the population with an ambulatory disability, something that limits mobility, I think that is 14% or 15%.

Q: Yet, customers push back on businesses providing so many handicapped parking spots.

DF: Then you have people who need those disability parking spots who say, “Whenever I pull in, they’re all taken.” And you have folks who use wheelchairs saying things like, “Those spots should be for me only. Because I have a wheelchair and I need to be that close.” But most disabilities are invisible, and a lot of those invisible disabilities still require a closer spot, like a heart condition or a lung condition.

Q: How many tickets are issued for illegally parking in a disabled spot?

DF: You’d have to reach out to every [jurisdiction]. It’s very much locally driven.

Q: Have some police and sheriffs have told you they’re not enforcing that?

DF: Multiple agencies have told me without missing a beat, “We don’t enforce disability parking.”

Q: Why not?

DF: Because they have other things to do. Or, because they don’t want to issue fines on members of their community. They’re actively making a decision on who gets rights and who does not. ADA is civil rights legislation. People say, “Oh, how nice, you get to park close.” No, I get to leave my house.

Q: My wife will call neighborhood theaters and ask if a movie is upstairs or downstairs, because if it’s upstairs, we’re not going.

DF: Is there no elevator? They would have to move the show downstairs, legally have to, if you request it.

DD: You’d have to sue to make them. Theory and practice are not the same thing.

DF: That would be adjudicated in court if you sued and the decision was made by a judge. Are you disabled enough to require this accommodation?

DD: Is it appropriate, is it reasonable? Depending on what you asked for.

Q: Are inaccessible businesses grandfathered in?

DF: It’s not true at all. It doesn’t matter when your building was built. If it was built in 1890, you still have an obligation to remove barriers on an ongoing basis. Obviously, some things are technically infeasible. Some things are so expensive that you just won’t do it. You’re not going to put in an elevator in a Mom and Pop flower shop on Main Street Alexandria.

Q: They can make a case and say, “It’s too expensive?”

DF: You see it in the news media when it comes to these types of things. Most of the stories are framed, oh, poor businesses. They had to shut down because they couldn’t be ADA compliant. Well, there’s Title II and Title III of the ADA. Title II applies to governments. Title III applies to businesses. The main differences being businesses only have to make things accessible if it’s cheap and easy. Only a judge can determine it. There’s no equation. People have this notion that it’s black and white, all or nothing. It’s a case by case basis. Find creative ways to be accessible. If it’s going to break the bank, you don’t have to do it.

Q: What’s the incentive for business?

LG: I think when you put the onus on the disability community to enforce an unfunded mandate, you create ill will. You’re participating in what can be a fair and equitable society. If your business model has anything to do with fairness and equity, it just behooves you to be in a leadership position. It’s in your best interest in multiple ways to do the right thing.

DD: It’s entirely economically based. A hundred-plus years ago, we had people returning from wars overseas with disabilities. They couldn’t work or get into their government buildings or be part of society in that day. That issue started things like vocational rehabilitation to get people able to work. I think it’s all economics. There are very few times where how you design your store excludes 15% of your customers.

DF: Let’s use the theater example. If they don’t move the movie, you just don’t go. I guarantee you folks with disabilities know where they can and can’t go to spend money. So, you have that perspective. Then you have the perspective of the business owner who says, “Oh, I never see those people in here anyway.” They don’t view that as lost revenue. There was a time when folks with disabilities were just institutionalized or hidden away. Now we’re taking steps, but you still don’t have that ongoing removal of barriers. The places that are accessible get all that business.

Q: You’ve said government has a greater responsibility to be accessible. Talk about that.

DF: They have no excuse.

DD: They don’t even have the opportunity to say it’s too expensive.

Q: So how can they take years to act?

DF: Because the enforcement is exactly the same.

Q: People have to sue?

DF: Yes. Unless somebody makes a stink and fights for it, and it usually takes years, things just stay inaccessible.