Self-reporting review that led to U.S. Attorney's lawsuit against Philly pub is inadequate, disability rights attorney says

By Karen Kidd | May 25, 2016

PHILADELPHIA – The good news may be that 24 of 25 popular and often frequented restaurants in Philadelphia are not being sued by a U.S. Attorney, but South Philadelphia Tap Room is, all of which is surprising, a disability rights attorney said during a recent interview.

"Yes, I am surprised that the U.S. Attorney's ADA Compliance Review has resulted in only one lawsuit over the course of the year," attorney Michelle Uzeta said in an email interview with the Pennsylvania Record.

"I'm more surprised, however, by the extremely limited scope of the ADA Compliance review, 25 restaurants, and the manner in which the review was conducted."

Uzeta, who maintains an office in Monrovia, Calif. and since 1993 has specialized in civil rights advocacy with expertise in disability rights and fair housing law, took issue with the way restaurants were surveyed in the review. Each restaurant received the review in the mail, which they were expected to fill out and send back in, facing only a chance of being investigated in person, Uzeta said.

"This is inadequate, in my opinion, and illustrates the problem with relying on the government for ADA enforcement," she said.

Uzeta's description of the review process seems to be backed up by the lawsuit filed on April 25 in U.S. District Court for Pennsylvania's Eastern District by the state's Eastern District U.S. Attorney Zane Memeger. The lawsuit against the Mifflin Street pub and owner John Longacre alleges South Philadelphia Tap Room exhibits numerous violations of the Americans with Disabilities Act of 1990 (ADA), particularly in its entrance and restrooms.

As part of its Philadelphia Restaurant ADA Compliance Review, the U.S. Attorney's Office mailed the survey to the South Philadelphia Tap Room on March 6, 2015, and it was signed for by someone at the pub, according to the lawsuit. Another survey was hand-delivered to the establishment and also was signed for on April 16, along with a letter requesting a response by April 21, the lawsuit said.

When no response was received, an assistant U.S. attorney spoke with Longacre on May 8, and Longacre requested previous correspondence and the survey be emailed to him, which did happen, but there still was no response, the lawsuit said.

The U.S. Attorney followed up with a letter on August 18, listing the pub's alleged accessibility problems and requiring they be rectified, the lawsuit said. That letter was signed for and there was no response. There also was no response to an email on Sept. 11, the lawsuit said.

"It would be readily achievable for defendants to remove some or all of the barriers to access at the Tap Room," the lawsuit said. "Defendants have failed to remove some or all of the barriers to access at the Tap Room."

The lawsuit calls upon the court to declare defendants in the case in violation of Title III of the ADA, remove all its violations, compensate persons aggrieve and asses civil penalties.

The lawsuit does not state whether South Philadelphia Tap Room would have received an in-person visit from anyone at the U.S. Attorney's office if the original survey had been filled in and returned. This process of self-reporting is typical in such cases, Uzeta said.

"Although any enforcement efforts undertaken by the Department of Justice are greatly appreciated, they simply lack adequate resources to deal with the staggering number of non-compliant places of public accommodation with the ADA's accessibility requirements," she said.

Uzeta said she has heard of other similar investigations by federal prosecutors, including similar compliance reviews conducted in Manhattan.

 "A number of 'popular' hotels were surveyed and later restaurants," she said. "The same approach was utilized - self-survey, with the chance of follow up by federal investigators."

A good ADA plaintiffs' attorney would get similar results, Uzeta said.

"That is, compliance with ADA accessibility standards and modification of policies and procedures to ensure that people with disabilities have equal use of and access to businesses," she said.

"Much ado has been made in the media about so-called 'drive-by' plaintiffs and their counsel, but the focus really should be on why, 25-plus years after the ADA was enacted, there is still such gross non-compliance with the law.

"The majority of plaintiffs and counsel who file lawsuits in this area of the law are genuine civil rights plaintiffs and advocates, not people seeing a windfall or to milk the system."

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