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Public Accommodation and Negligent Referral

Public Accommodation and Negligent Referral. Mark F. Jacobs Katskee, Henatsch & Suing. Public Accommodation. Americans with Disabilities Act of 1990 (ADA) 42 USC §§ 12102 et seq Five Titles: Title I Employment Title II Public Entities (includes Courts)

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Public Accommodation and Negligent Referral

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  1. Public Accommodationand Negligent Referral Mark F. Jacobs Katskee, Henatsch & Suing

  2. Public Accommodation • Americans with Disabilities Act of 1990 (ADA) • 42 USC §§ 12102 et seq • Five Titles: • Title I Employment • Title II Public Entities (includes Courts) • Title III Places of Public Accommodation 42 USC §§ 12181-89 • Title IV Telecommunication • Title V Miscellaneous provisions

  3. Public Accommodation • 28 CFR Part 36 • Regulations issued by the Department of Justice to implement Title III. • Appendix - ADA Standards for Accessible Design (1991 Standards).

  4. Public Accommodation • Public Accommodation defined by 42 USC §12181(7)(F) are private entities including: “A laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office or healthcare provider, hospital or other service establishment.”

  5. Public Accommodation • What does being a place of public accommodation mean? • Prohibits discrimination • “…on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations on any place of public accommodation by any person who owns, leases(or leases to) or operates places of public accommodation.” 42 USC§12182 • Duty • Remove physical barriers where readily achievable • Reasonable modification of rules and procedures • Provide effective means of communication • Must provide aids, unless undue burden or fundamentally alters services offered

  6. Public Accommodation Sec. 12102. Definition of disability As used in this chapter: (1) Disability. The term "disability" means, with respect to an individual (A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment (as described in paragraph (3)).

  7. Public Accommodation • Removing Physical Barriers • Readily achievable without much difficulty or expense 42 USC §1281(9) • Priority • Accessible approach and entrance • Access to goods or services • Access to public restrooms • Any other measures necessary • Tax Credit 26 IRC §44 • Tax Deduction 26 IRC §190 • ADA Accessibility Guidelines (ADAAG) • ADA Standards for Accessible Design

  8. Public Accommodation • Make Auxiliary Aids and Services available upon request: • Hearing Loss: • ASL Interpreter • Video Relay System • TTYs/TDDs • Communication Access Real-Time Translation (CART) • Vision Disability: • Braille materials • Large print materials • Audio recordings • Tax Credits and Deductions • Service Animals

  9. Public Accommodation • The term qualified interpreter is defined in the regulation to mean: " . . . an interpreter who is able to interpret effectively, accurately and impartially both receptively and expressively, using any necessary specialized vocabulary. " 28 C.F.R. 36.104.

  10. Public Accommodation • Repercussions for Violations • Private Lawsuits CFR §36.501 • Injunctive relief • Attorney’s fees and litigation expenses • Suit by Attorney General CFR §36.503-36.504 • Equitable relief • Monetary damages • Civil Penalty • $55,000 – first violation • $110,000 – subsequent violation • Attorney’s fees and litigation expenses

  11. Public Accommodation • Examples • Gregg Tirone, New York (2004) • Failed to provide client with sign language interpreter for deaf client. • Used client’s sister to interpret. • Post statement in legal paper and in office • Pay $2,200 to client and waive any fees owed • Agreement open for 3 years • Law Office of Cohen and Jaffe, LLC New York (2006) • Failed to provide sign language interpreter in advance of deaf client’s deposition. • Used client’s mother to interpret. • Finally provided an interpreter, but charged the client for this service. • Post statement in office. • Pay client $7,000. • Agreement open for 2 years

  12. Public Accommodation • Examples cont’d • Joseph Camacho, New Mexico (2007) • “Never had to pay to converse with own client.” Withdrew from case. • Post and follow new policy. • Pay client $1,000 in damages. • Agreement open for 3 years • Peroutka and Peroutka, Maryland (2013) • Debt collection firm. • Refused to accept Video Rely Service Calls from individuals looking to resolve disputes on unpaid debts • Revise policies • $30,000 to complainants • Agreement open for 3 years

  13. Public Accommodation • Examples, cont’d • Lehouillier & Associates, Colorado (2010) • Denied service dog of opposing party at deposition • Post “Service Animals Welcome” • Training to staff • $30,000 to complainant • $10,000 to complainant’s husband • $10,000 civil penalty • Agreement open 3 years • Dr. Fogari, New Jersey (2008) • Deaf patient, 20 visits in 20 months. • Said couldn’t afford cost of $150-$200 for interpreter, told client to go to another doctor • Earned over $400,000 year • $400,000 verdict

  14. Public Accommodation • Websites • 2006 ABA Resolution RESOLVED, That the American Bar Association urges that websites provided by lawyers, judges, law students, and other individuals or entities associated with the legal profession, including law firms, the courts, other legal employers, law schools, and legal publishers be created and maintained in an accessible manner which is compatible with reasonable technologies (known as assistive technology) that permit individuals with visual, hearing, manual, and other disabilities to gain meaningful access to these web sites.

  15. Public Accommodations • Best Practices • Inform yourself and train your staff • Don’t ask client to bring relative to interpret • Never bill client for cost of accommodation or auxiliary aid • Communicate with client to determine their preferences • Use the ADA checklists and review your physical office • Consider changing location for meetings/depositions/etc to accommodate individual with disability

  16. Public Accommodation • Contact for further information: • ada.gov • ADA Checklist for Readily Achievable Barrier Removal ada.gov/racheck.pdf oradachecklist.org • ADA Technical Assistance Manual ada.gov/taman3.html • US Department of Education Regional Disability and Business Technical Assistance Centers adata.org • US Architectural and Transportation Barriers Compliance Board access-board.gov • US Department of Justice usdoj.gov • disabilityrightsnebraska.org • disabilityrightsiowa.org

  17. Public Accommodation • Nebraska Commission for the Deaf and Hard of Hearing Lincoln 402-471-3593 / Toll Free 1-800-545-6244 • supremecourt.ne.gov/interpreters/registry • new.iowastaterid.org

  18. Negligent Referral • http://www.youtube.com/watch?v=EkS6R0YtobQ

  19. Negligent Referral

  20. Negligent Referral • Nebraska and Iowa Case Law

  21. Negligent Referral • Case Law • Rainey v. Davenport, 353 B.R. 150, 180 (Bankr. S.D. Tex. 2006) • “A cause of action for negligent referral of one professional by another is a legitimate claim for a client to assert.” • Norris v. Silver, 701 So.2d 1238 (Fla. 3d DCA 1997) • Division of fees. Referring attorney responsible for malpractice of referred attorney. • Weisblatt v. Chicago Bar Association, 292 Ill.App.3d 48, 684 N.E.2d 984 (Ill.App.1 Dist:1997) • CBA LRS not responsible for services of referred attorney. • Bourke v. Kazaras, 746 A.2d 642 (Pa.Super.2000) • Pennsylvania courts have not adopted a cause of action for negligent referral. • Tormo v. Yormank, 398 F.Supp 1159, 1170 (DN.J. 1975) • A jury could find that the duty arose from referring attorney’s express representations as to referred attorney’s qualifications

  22. Negligent Referral • Best Practices • Due Diligence • Attorney reputation, background • Bar discipline • Malpractice insurance • Disclose why referral is being made • Put in writing not express endorsement • Have list of attorneys prepared in advance • Lawyer Referral Service • (402) 280-3603 (Douglas, Sarpy, Washington, Cass)

  23. Negligent Referral • Don’t be a case of first impression! • Questions or comments: • mark@katskee.com

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