Disney Access??

[BillPaxton]

Originally Posted by Timezkware Tim

but DRAFT has a case,

What is the basis of their case? Disney provides a reasonable accomodation...I can't see any violation except of ticking people off that want to be self-reliant. I'll be the first to admit if I'm wrong.

[Desert_Seg]

Bill,

You are partially right. Non-mobility impaired individuals have no chance to ride a Segway within the park, regardless of a two-wheel ban or not. There is no inherent right to glide.

However, on the ADA side, the story is completely different. According to the letter from Disney (if it stands as their justification) they have established a clear line in the sand. Their Segway ban is based (according to the letter) on it being a two-wheeled vehicle, nothing more. If you had a third wheel it then no longer falls under that descriptor and, therefore, can no longer be banned under the two-wheeled reasoning.

Yes, Disney can then set a new bar BUT they cannot do so by creating a new class of people (that is discrimination). They can only do so for documented safety reasons and / or by establishing a regulation that does not unfairly burden a person who might normally use a Segway (a mobility impaired person, that is).

Since we know that they allow three-wheeled vehicles as mobility aids then a Segway with three wheels has to be allowed, even if they offer the glider a free alternative form of transport. They cannot ban a Segway "because"...they have to have firm, documented, and supportable arguments.

Also, I doubt they will ever offer / allow the non-mobility impaired Segway owner to bring their Segway into the park. Liability is just way too high and there is no reason for them to endure the risk. I, for one, think it would be a stupid move, much as I think allowing non-mobility impaired individuals to ride in malls is a foolish idea.

Steven

[BillPaxton]

Originally Posted by Desert_Seg

However, on the ADA side, the story is completely different. According to the letter from Disney (if it stands as their justification) they have established a clear line in the sand. Their Segway ban is based (according to the letter) on it being a two-wheeled vehicle, nothing more. If you had a third wheel it then no longer falls under that descriptor and, therefore, can no longer be banned under the two-wheeled reasoning.

Banning two wheel vehicles is not an ADA violation, and if they randomly said they were banning vehicles with fewer than 8 wheels it still would not be discriminitory and not actionable against the ADA as long as provision was made to assist the disabled..You are not "creating a new class of people" by saying "with two wheels", you are just establishing a standard to which less than the standard is cause for restriction. You can't say Disney is discriminating against short people for having signs of Dopey the Dwarf saying "you must be this tall to ride". You also can't assume a right exists because it is not implicitely denied, for example, you most likely would be denied entrance if you try to enter on a 10-speed equipped with training wheels. The training wheels do not alter the base construction of a device which is banned. That would be like trying to enter a civil court carrying a large knife and trying to tell the bailiff it is a cooking utensil and not a weapon.

Originally Posted by Desert_Seg

I, for one, think it would be a stupid move, much as I think allowing non-mobility impaired individuals to ride in malls is a foolish idea.

Steven

And I totally agree with you

Bill

[Tarkus]

Originally Posted by BillPaxton

What is the basis of their case? Disney provides a reasonable accomodation...I can't see any violation except of ticking people off that want to be self-reliant. I'll be the first to admit if I'm wrong.

OK gentleman,

Time for us is of the essence and we are extremely busy fighting these types of battles on Capitol Hill, where true change can be brought about, to play "Legal Eagle" time after time on the Internet.

So if this post offends anyone, so be it.


There is little doubt in the views of most attorneys who we have discussed the issue with, including those in civil rights divisions of several agencies of the federal government, including Department of Justice, Department of Transportation, EEOC and many others that Disney's policy is in violation of the Americans with Disabilities Act.



The telltale sign of someone who lacks a real knowledge of the ADA, especially an attorney or someone who espouses to know the ins and outs of the provisions and protections of the Americans with Disabilities Act, is the moment they utter the phrase "reasonable accommodation" in connection with the protections afforded in Title III of the ADA.



Reasonable accommodation is a concept which is used in conjunction with employment protections offered in Title I of the Americans with Disabilities Act. It has little or no application to Title III issues.



In Title III of the ADA the concept which is used is, reasonable modification of policies, practices, and procedures, by the place of public accommodation, Disney in this instance, which requires them, not people with disabilities, to modify their policies practices and procedures to accommodate people with disabilities.



Walt Disney Parks and Resorts, LLC decision not to permit the use of Segways by qualified people with disabilities within their parks is a violation of the Americans with Disabilities Act, and in the case of those venues located within the State of California, the UNRUH Civil Rights Act.

Walt Disney Parks and Resorts, LLC requirement of the use of motorized wheelchairs or scooters for guests with mobility related disabilities does not satisfy the requirements of the Americans with Disabilities Act nor the UNRUH Civil Rights Act.

The motorized wheelchair is a medical device and a mobility device which is necessary and appropriate for those with disabilities when prescribed by a physician.

Its use by many of those with disabilities which are mobility-related in lieu of a stand-up mobility device is neither appropriate nor safe unless prescribed by a physician, and only then when designed specifically to accommodate their body shape and size.

Walt Disney Parks and Resorts, LLC requirement that people with mobility related disabilities use the motorized wheelchair or scooter provided, in lieu of a stand-up mobility device, not only is a violation of the ADA and UNRUH, but also violates state and federal law with regard to the practice of medicine without a license.

The Segway is among the, if not the safest, mobility device on the market today. There is not in existence today one single reported incident of a person with disabilities using a Segway as an assistive device having caused injury to any other bystander. The same claim cannot be made about the use of other assistive devices such as power wheelchairs and scooters, even in Disney’s own Parks.

It is not permissible under federal law for Walt Disney Parks and Resorts, LLC to imagine or contemplate a danger. The use of the Segway by their "cast members" inside their Parks is clear and convincing evidence that the Segway presents no danger to others when operated properly.

It's all in the ADA, but you need to read all of it and understand what "terms" refer to each title.


So ,with that I will bid this portion of my show adieu. If you like you all can keep "hashing out the what if's" and I will concern myself with instituting the change as seen by the agencies mentioned above.


Be Big,
Alan

[polo_pro]

Excellent Alan! Thank you for spending a fair amount of time going over this in detail for the members of SC. ( I know we could go over to DRAFT and probably find alot of this...but I'm not sure if it'd be explained so concisely in all in one place.)

Rep points for you!

ps - Does JohnM ever chime in on matters relating to disabled use of the segway? I'm wondering if we're likely to hear more excellent discussion on this matter.

[drmarty]

I am amused by all the opinions. Although I can't see where on Earth he came up with his opinion that it is the height of Segways that bother Disney, Bill at least it has a brand new opinion I haven't heard before.

Moving on, I wonder why he thinks DL "was built mainly for kids." I have no idea but feel Ole Walt was a way better businessman than that. Kids have no money. Guess who they make pet food appeal to? Not pets. Pets have no money.

I don't have a clue why DL won't allow Segways or how DL was built or who it was built for.

I like it when we know something and don't have to guess. They say Segways are banned because they are two wheeled. I just don't really believe them and that is why I say put hteir feet to the fire. If that's the reason then (God forbid) a "Q" should be OK (Whatever that Segway knockoff with 4 wheels is called) Maybe we should buy one of those to try. I might know a Segway owner that bought one of those before a Segway.

Marty

[Timezkware Tim]

Originally Posted by BillPaxton

What is the basis of their case? Disney provides a reasonable accomodation...I can't see any violation except of ticking people off that want to be self-reliant. I'll be the first to admit if I'm wrong.

I once thought that mobility devices for disabled people had to be an approved disabled device and labled as such. Alan and a few others here brought me up to speed on some of the DRAFT laws. According to the ADA, devices for the disabled do not have to be a specific approved device.

That's why I think DRAFT has a case with Disney. It may be a privately owned business, but it is considered a space that is generally open to the public, with provisions for disabled people that are required by law. Even if they provide a wheelchair, unless they provide someone to push it around all day, they are singling out the disabled person who chooses to use a Segway to get around, instead of pushing a manual wheelchair.

It's not a slam dunk for either side (Draft and Disney). This thing will wind up in court at one point. There is a lot of grey area in resolving this issue.

Tim

[BillPaxton]

Excellent Post Allen! You are right, I work at a law firm and speak with the attorneys frequently about these issues but I was clearly unaware of the legal definition of "Reasonable Accommodation" and I stand corrected. So let me ask you for more info...The ADA enables a business to justifiably exclude an otherwise qualified individual with a disability because that person poses a “direct threat” to the health and safety of him/herself and others. But there is also a split among Circuits regarding which party bears the burden of proof on the presence or lack of a “direct threat” and there is no resolution on the horizon. Despite the split in Circuits, the Supreme Court recently declined to review a decision by the Tenth Circuit that a former police officer with post-traumatic stress disorder who sued under the ADA had the burden of showing that she did not pose a direct threat to others’ health or safety. Can Disney claim that Segways are a "Direct Threat"?

BTW Doc, the height thing was sarcasm, as was the $14 ice cream cone.

-Bill

[drmarty]

Whew.

Marty

[Tarkus]

Originally Posted by BillPaxton

Excellent Post Allen! You are right, I work at a law firm and speak with the attorneys frequently about these issues but I was clearly unaware of the legal definition of "Reasonable Accommodation" and I stand corrected. So let me ask you for more info...The ADA enables a business to justifiably exclude an otherwise qualified individual with a disability because that person poses a “direct threat” to the health and safety of him/herself and others. But there is also a split among Circuits regarding which party bears the burden of proof on the presence or lack of a “direct threat” and there is no resolution on the horizon. Despite the split in Circuits, the Supreme Court recently declined to review a decision by the Tenth Circuit that a former police officer with post-traumatic stress disorder who sued under the ADA had the burden of showing that she did not pose a direct threat to others’ health or safety. Can Disney claim that Segways are a "Direct Threat"?

BTW Doc, the height thing was sarcasm, as was the $14 ice cream cone.

-Bill

III-3.8000 Direct threat. A public accommodation may exclude an individual with a disability from participation in an activity, if that individual's participation would result in a direct threat to the health or safety of others. The public accommodation must determine that there is a significant risk to others that cannot be eliminated or reduced to an acceptable level by reasonable modifications to the public accommodation's policies, practices, or procedures or by the provision of appropriate auxiliary aids or services. The determination that a person poses a direct threat to the health or safety of others may not be based on generalizations or stereotypes about the effects of a particular disability; it must be based on an individual assessment that considers the particular activity and the actual abilities and disabilities of the individual.


The individual assessment must be based on reasonable judgment that relies on current medical evidence, or on the best available objective evidence, to determine --


1) The nature, duration, and severity of the risk;


2) The probability that the potential injury will actually occur; and


3) Whether reasonable modifications of policies, practices, or procedures will mitigate or eliminate the risk.


Such an inquiry is essential to protect individuals with disabilities from discrimination based on prejudice, stereotypes, or unfounded fear, while giving appropriate weight to legitimate concerns, such as the need to avoid exposing others to significant health and safety risks. Making this assessment will not usually require the services of a physician. Sources for medical knowledge include public health authorities, such as the U.S. Public Health Service, the Centers for Disease Control, and the National Institutes of Health, including the National Institute of Mental Health.

End.



So the answer to the question is no, Disney may not claim the Segway as a direct threat, but may be able to claim a particular person is.

So the blanket "Segway Ban" still doesn't fly, and as I've said a million times, Disney knows that.

Be Big,
Alan