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HomeMy WebLinkAboutMN-DAC-2009-11-04DISABILITY ADVISORY COUNCIL PROCEEDINGS CITY OF ITHACA, NEW YORK Regular Meeting 12:15 p.m. November 4, 2009 PRESENT: DAC Chair — Roberts DAC Vice Chair - Gizewski DAC Members: David McElrath Erin Sember Jason Anderson Andrew Rappaport EXCUSED: Wendy Skinner George Eberhardt Otis Jackson OTHERS PRESENT: Information Management Specialist — Myers City Attorney — Hoffman City Forester — Hillman Director of Planning and Development — Cornish Planner - Kusznir APPROVAL OF MINUTES: Approval of the October 7, 2009 Disability Advisory Council Meeting Minutes — Resolution By DAC Member Sember: Seconded by DAC Member Gizewski RESOLVED, That the minutes of the October 7, 2009 Disability Advisory Council meeting be approved as published. Carried Unanimously NEW BUSINESS: City Attorney Dan Hoffman -- Accessible Vans at Titus Towers City Attorney Hoffman stated that as City Attorney he does not represent individuals, so he is not being a lawyer for any individual that may have a complaint against the Ithaca Housing Authority. Also, he does not claim to be an expert on disability law, he knows some things, but he is sure he is not familiar with every single case that might be out there. He does know that the Americans with Disabilities Act seems to address this kind of situation in two places. The first is in Title II which applies to "public entities" and it prohibits any public entity from discriminating against a qualified individual with a disability or excluding such individual from participation in or the benefits of any of the entities services, programs, or activities. Title III applies to "public accommodations" and anyone who operates a place of public accommodation cannot discriminate on the basis of disability and in so doing deny a person with a disability full and equal enjoyment of the services of any place of public accommodation, that also seems like it could apply. So, the first question of course is whether Ithaca Housing Authority is a public entity, and from his understanding, it is. It is some type of State authorized agency that receives both State and Federal funding so as far as he can tell it is a public entity. Is Titus Towers a public accommodation, his understanding is that it is generally available to people who are interested in living there. He is sure there are eligibility requirements of some kind, but it would appear that it is a place of public accommodation, in which case, both Title II and Title III would apply. Then the question is who is a "qualified" person? He had an intern in his office do some research on this, and a qualified individual with a disability means an individual with a disability who with or without reasonable modifications to rules, policies, or practices or the removal of architectural or other barriers or the provision of auxiliary agency services meets the eligibility requirements for the receipt of services or the participation in programs or activities provided by the public entity. So, if a person with a disability is eligible for this recreational activity then the vans that are needed for this activity need to be accessible. He has no idea what the eligibility requirements are to participate in the recreational programs and being transported by the vans, and he doesn't know if they are open to anybody who is a resident or if there residency requirements. DAC Member McElrath stated that the recreational activities are open to all residents. November 4, 2009 City Attorney Hoffman stated that it would appear that any resident with a disability is a qualified person. DAC Member Sember asked who pays for the vans. DAC Member McElrath responded Ithaca Housing Authority (IHA). DAC Member Sember asked if IHA own Titus Towers? Chair Roberts stated that IHA is responsible for Titus Towers. He further asked who sponsors the programs, is it the tenant's council that offers the program? DAC Member McElrath responded that it is under the tenant's council. Chair Roberts asked if the tenant's council gets the vans from IHA? DAC Member McElrath responded yes. Chair Roberts asked if the tenant's council offers this program to every resident of Titus Towers? DAC Member McElrath responded yes. Chair Roberts asked if the tenant's council is a separate, legal entity from IHA? DAC Member McElrath responded that it wasn't. DAC Chair Roberts asked if the tenant's council has its own authority and its own money? DAC Member McElrath responded no. Chair Roberts stated that he thinks that is the issue because if it's the tenant's council that is offering the program, then Titus Towers could simply say that they cannot use their vans to do it. City Attorney Hoffman stated that there is no requirement, as far as he knows, that IHA offer these programs. The point is if they do offer them, then they have to provide reasonable accommodations for people with disabilities. DAC Member Sember stated that the other issue might even be whether this would even fall under the ADA, but would it fall under the Fair Housing Act? Because her understanding is the fair housing act is what governs all housing providers. She stated that there are things in the fair housing act that would protect people with disabilities from not being discriminated against, so what law would actually apply depends on who is providing the program. City Attorney Hoffman responded that may be, he didn't ask the intern to research the Fair Housing law, but it appears to him that Title II of the ADA would apply in any case because it's a public entity. DAC Member Sember agreed. City Attorney Hoffman stated that the question is whether Title III applies and it may or may not. Vice Chair Gizewski stated that he was wondering about it being a reasonable accommodation as far as requesting a lift be put in the vans, and it may not be at this point, but it would be whenever they purchase new vehicles. He explained that buildings can get by the requirement if it's unreasonable, but under new construction they have to make new buildings accessible. He was wondering if they are going to have to be getting new vans at some point because it seems like they have these vans for a while if when they order the new vans, maybe the tenant's council can request that they be accessible based on Title I and Title II requirements. City Attorney Hoffman responded that sounds reasonable to him. There is a lot of case law about what is reasonable accommodation, as he is sure the DAC members are aware, one criterion is that is set by the Supreme Court is that a public entity is not required to make a fundamental alternation to the nature of the program. So, for example, if on these recreational programs, people are doing something that a person in a wheelchair couldn't do, and that is part of the nature of the program, they could November 4, 2009 make that argument. But, if they're doing typical sight seeing, he would think there is no fundamental change in the program required by allowing people in wheelchairs. The other criterion established by the courts is whether the inclusion of disabled people in the program would pose a significant risk to the health and safety of others. He doesn't see where it would, again, if you were in some kind of team situation, where every person had to do some physical thing, that the person in the wheelchair couldn't do, that would be one thing, but if everybody is functioning as an individual and being a spectator or whatever, then it doesn't seem like this would be grounds. DAC Member Sember asked how the trips were being paid for, is there money coming out of the tenant's rent to go into a pot of money for recreational activities. DAC Member McElrath, stated that on an outing today to Tioga Downs, the residents got the van and they didn't pay IHA for the use of the van. DAC Member Sember stated that someone is paying for it. Chair Roberts asked where the money comes from to pay for the vans, gas, and the driver. DAC Member McElrath responded that IHA pays for the gas and the driver. DAC Member Sember asked where IHA is getting their money, and noted that if that money is being pooled from pieces of people's rent then that is even more exclusive. Chair Roberts asked what the next step should be. He stated that the DAC is an advisory body and is supposed to advise the City and City officials about problems for people with disabilities. Would it be appropriate for this body to, now that we have this information from the City Attorney, to ask the City Attorney to advise Titus Towers of his findings? That is not to say that the City is going to do anything or require anything, but that the DAC asked the City Attorney to look into this, based on a complaint from a member, and here is the City's advice. The City Attorney's office as a department of the City does have a relationship with the housing authority in the sense that the Mayor appoints some of the members of the Ithaca Housing Authority Board. Would that be a way to go? City Attorney Hoffman stated that as an advisory board, the DAC can offer whatever advice it wants that is relevant to its area of concern. He further explained that his supervisor is the Mayor, and he always checks with her before he just does things. He suggested that the DAC ask that the City Attorney do something, and he would consult with the Mayor to make sure she is comfortable with that. He thinks that the DAC would be free to make its own recommendation to IHA based on what they heard and what they think, but if the DAC wants to have something more formal, that's their choice. DAC Member Rappaport stated that an alternative approach would be that the residents of Titus Towers can make a formal complaint to the Justice Department who implements that ADA. In three to five years from now, which is probably when IHA would be buying new vans anyway, the DOJ would be getting around making their recommendation to IHA that they really should have accessible transportation and require a plan which will be in whatever reasonable cycle they determine that those vans would need to be purchased. Vice Chair Gizewski stated that the letter to the DOJ is not acceptable and understands that is the reality, but in terms of whether or not there is anything that can be done sooner or if IHA is going to be purchasing vans prior to three to five years from now if it's just a matter of "rattling their cage" so to speak to let them know they are in violation right now maybe that would be the approach to take now. DAC Member Sember stated that that if someone were to call her offices' hotline (Cornell University — Employment and Disability Institute) with this issue, what she would probably say to them is that yes, you could simply file a complaint with HUD and the DOJ, you could probably just do a complaint to DOJ, but they would probably kick it over to HUD anyway and file the complaint, but she has no idea how long HUD typically takes. She would also suggest that this might be a NYS Civil Rights Complaint and the reality is that NYS Division of Civil Rights moves quickly compared to the DOJ. Q November 4, 2009 Vice Chair Gizewski stated that the another suggestion would be to stop the recreational outing opportunities until everyone can participate — an either everything or nothing type of approach. Chair Roberts stated that he doesn't think they should proceed on that basis, what the DAC should probably recommend is that when IHA buys their next van that it be accessible. DAC Member Sember stated that IHA is still responsible, but lets say it's not financially feasible for them to do it right now because they don't have the money to buy a new van right now or to alter the existing van, the law is written that they still have to find alternatives to be able to provide that same benefit, they're not just off the hook for that requirement. They still have a responsibility to figure out how to provide that same program benefit or service in another way that may not be as ideal but at least it gets them what they need to get. So, if they choose not to do that, then they are only increasing their chances of having complaints filed against them because they are not doing anything. Larry Roberts stated that his suggestion would be that the DAC, and he could work with the City Attorney to figure out what the letter would say, or what we would ask, is that the DAC write to the IHA with the recommendation that they comply and include the information about finding an alternative means to accommodate everyone. It seems less threatening to offer advice at this point and see how IHA responds. DAC Member Sember stated that if IHA does not respond to that letter and advice, then the DAC has the grounds to move forward on a formal complaint. Chair Roberts stated that he would review the minutes, talk with the City Attorney, and put together a letter that really says this is the DAC's advice, as an advisory council of the City, and not at the moment ask the City Attorney to write a letter. The DAC agreed to that approach. Commons Repairs and Upgrades: Planner, Project Manager Jennifer Kusznir and Director of Planning and Development Cornish joined the DAC for the update on the Commons re- design project. They did a slide show presentation of the three options proposed by Sasaki Associates for the re- design of the Commons. They answered questions and explained in detail each alternative as well as time lines and costs associated with the project. Various DAC members offered suggestions for accessibility issues and designs. Other Updates: Director of Planning and Development Cornish stated that she would come back to a future meeting of the DAC to provide an update on the City's Comprehensive Plan. Historic Planner and ADA Coordinator Leslie Chatterton stated that she would be distributing ADA surveys to Department Heads very soon. Chair Roberts reported that the accessible map project and handicap parking project are moving along. ADJOURNMENT: On a motion the meeting adjourned at 1:30 p.m. Sarah L. Myers Larry Roberts Information Management Specialist Chair, DAC Ci