From an American legal practitioner's viewpoint

Report of the CIB Expert Seminar on Building Non-Handicapping Environments, Budapest 1991

Contents

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From an American legal practitioner's viewpoint

Sid Wolinsky, Disability Rights Education and Defense Fund, Inc., USA


The United States experience prior to the ADA made it quite clear that the effective enforcement depended on a variety of approaches. Certainly, governmental enforcement alone could not be relied upon to bring about barrier-free environments. Over-burdened and under-resourced government officials neither had the funds nor the inclination to make disability access a priority. Similarly, there was not sufficient financial incentive in litigation to rely on private court enforcement as the sole device for effecting legislation.

Disability groups themselves are important in the enforcement process, however they must be organized and they must have effective skilled assistants. This includes professionals with legal training, design experts and consultants, and existing public interest and political groups willing to put architectural barriers on their action agenda.

There is no single-most powerful enforcement tool. Where lawsuits brought by private organizations and disability groups have been utilized, they have been extremely effective. However, there can only be a limited number of such suits, they require an aware disability constituency and, accordingly, they are not likely to affect a large geographical area.

Conversely, government enforcement has a much broader scope, but has not been as effective in individual cases. One of the most important weapons has been the authority of a local building department to refuse to issue a building permit where accessibility guidelines have not been followed.

In situations where a structure slips past the local building department, it is important to have very severe penalties such as fines, damages, penalties, and injunctive relief to modify the building. The right of an individual complainant to his or her attorney's fees in successful architectural barrier litigation has been extremely important in the enforcement process in the United States.

By and large, national or even state enforcement has not tended to be very effective, in part, because of the size of the areas that need to be covered. Enforcement by local building departments seem to work best but result in inconsistent application of the laws and spotty enforcement.

Advocates in other countries who are contemplating legislation should consider at least the following factors:

• very severe penalties for infractions,
• the right to attorney's fees for successful claimants where private causes of action are brought.

Advocates in other countries who are contemplating similar legislation should use model legislation that has already been developed. Before the introduction of the legislation, however, they should hold conferences and seminars to help organize disability groups around the issues and to obtain their input into the total legislative package. Support across disability lines is critical.

In addition, the legal community, especially the law school community, should be involved in the process and their expertise and support should be solicited. In every country, a substantial percentage of the legislature are also members of the bar and their involvement with local law faculties will be of assistance. Wherever possible, existing bodies (such as local building departments) should be utilized for enforcement purposes, combined with the establishment of new organizations and enforcement mechanisms.