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2/20/99, 9:09 amcst

It's not the single step, it is the bigotry

Back in 1994 The Public Eye claimed that making the restaurant accessible was not "readily achievable." The Public Eye whined that they just could not afford to make alterations like other businesses in town. The 1990 Americans with Disabilities Act (ADA) does not require alterations that will bankrupt businesses, it merely calls for accessibility when it can be accomplished.

The ADA however, does not allow the "we are poor businessmen" excuse forever. The law sets priorities and states accommodations are to be made "when readily achievable." The Public Eye, however, has never taken the first step to make the restaurant accessible. Nine years of incompetent business management does not excuse The Public Eye from their responsibility to all Americans.

Voluntary compliance with the ADA makes good business sense. In the difficult market of Memphis bar-b-que, The Public Eye might be making money today if the restaurant had become accessible, rather than alienating people with disabilities. As a matter of fact, according to The Public Eye's attorneys, the business cannot even pay their rent. When you consider that 54 million Americans are protected by the ADA, about one-in- five people, it is foolish not to consider access.

Because private litigation does not recover damages, it is difficult to interest an attorney to sue to merely have the defendants comply with the law. The ADA through assistance and information, attempts to achieve compliance voluntarily. Most businesses do comply voluntarily. The Public Eye, however, has resisted voluntary compliance, technical assistance, and even public protest. They have delayed providing access to people with disabilities with repeated and intentional lies about efforts to become accessible.

• In 1994 Alan Goldberg, a manager of The Public Eye, wrote Ms. Cunningham in response to her complaint that people with disabilities could not enter the restaurant:

  "We have not had ANY PROBLEMS in regard to serving anyone IN OUR RESTAURANT and have always been able to accommodate these individuals who have special needs."

• In November of 1994 Mitch Goldberg stated, in writing, they would make alterations, but gave no time-table of when those changes would be initiated. At the time, advocates extended faith that The Public Eye would eventually comply with the ADA and did not demand timely compliance. By 1995 however, Mr. Goldberg had shifted his assurance that he would make alterations to submitting "...a list of the things we will change."

• June 28, 1996 a public protest erupted in front of The Public Eye. Alan Goldberg, the manager that evening, signed an agreement to provide a ramp in less than a month. It is clear that The Public Eye is violating the law, nevertheless, they have a trail of written documentation that claims they will comply. Until June 28, 1996 they had never given a date for compliance.

Following that protest, The Public Eye embarked on a new road of deception. The owners and management took steps to become accessible, yet never actually completed a single procedure to achieve compliance. They hired an ADA consultant in early July, who advised Mr. Goldberg on inexpensive ways to alter his restaurant to minimally meet the requirements of the ADA's "readily achievable standard." Most significantly, Mr. Goldberg purchased a fiberglass portable ramp to use at a secondary entrance about 30 feet from the front door and a small black access sign.

The thrust of the ADA is equality. For example, to enter and dine in a restaurant the same as everyone, and to participate fully and independently in typical community activities. At The Public Eye, one must depend on an employee seeing you need the ramp, and depend on someone safely placing the ramp in door for you just to get in. To often people with disabilities will opt just to stay home rather than hope for access. About a third of adults with disabilities go to a restaurant al least once a week compared to six out of ten of those without disabilities [1998 NOD/Harris Poll].

Equality is why advocates have insisted that The Public Eye make the front door accessible. Not just because Mr. Goldberg promised to back in 1994, but because it would mean equal participation. The readily achievable standard clearly includes alternate entrances as a method to provide access to a facility. The second door to the Public Eye however, would still need modifications to become accessible. To make modifications to that door, and not the front door which is on the same side of the building, would be analogous to creating a "segregated" entrance.

The ADA is very clear that portable ramps are not acceptable. First is the safety concern, and secondly, is the availability. If it is portable, there is a good chance that it will not be around when someone needs it.

The Public Eye did not pursue any of the suggestions of the ADA consultant, but this report further delayed any real compliance with the law. Specifically, the report states that Allen, Hal and Mitch Goldberg generally agreed to an accessible entrance, accessible path to the rest rooms, and accessible rest rooms. Again, they provided no date when these alterations would be made.

Because of this investment of time and money Advocates again gave The Public Eye and Mr. Goldberg the benefit of the doubt.

A year passed. Advocates were both angry at revolted by the repeated dishonesty. On Aug. 10, 1998 Memphis ADAPT voted to pay the filing fees for Deborah Cunningham's pro se complaint against The Public Eye, Southland Capital Corp., and JPM Properties. Later Mitch Goldberg, and Overton Square Investors were added because they "own, operate, lease, or lease to" The Public Eye.

Although in 1995 the Department of Justice had declined to step in, by 1998 it was clear that The Public Eye was engaged in a pattern and practice of discrimination. After the U.S. Attorney General Janet Reno declared the case to be of "general public importance," the U.S. Attorney's office in Memphis filed a Motion to Intervene on Feb. 8, 1999.

The Memphis Center for Independent Living
1633 Madison Avenue, Memphis, TN 38104
(901) 726-6404 v/tty (901) 726-6521 fax
mcil@mcil.org 

MCIL is a United Way of the Mid-South member Agency

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