LOCAL

Counties, cities face lawsuits to make websites compliant with Americans with Disabilities Act

Dave Berman
Florida Today
A screen shot showing closed captioning during a broadcast of a County Commission meeting, with County Commissioner John Tobia in the image. Brevard County now is offering this feature, and taking other steps to be in compliance with the Americans with Disabilities Act.

Last year, the Brevard County attorney's office received a pair of lawsuits, claiming that the county was violating the Americans with Disabilities Act. The reason? Its website was not fully accessible to people who are blind.

Versions of those lawsuits are familiar to government attorneys around Florida. Hundreds have been filed around the state against counties, cities, towns, school districts and other entities.

Often, they come with little notice, and take governments to court without first giving them a chance to fix the problem before the legal action begins. Some of the suits are being challenged. Many more are settled without going to trial.

And, for Brevard County, the lawsuits led to a revamp of the county's website, plus other reforms to help people who are blind, deaf, colorblind and or have other disabilities. The changes are costing the county $126,980 a year, plus the staff time involved in extensive training.

Settling the lawsuits quickly cost Brevard County another $31,900, covering damages experienced by the plaintiffs, the plaintiffs' attorney fees and other expenses. It's a move the county took to avoid accumulating more legal fees, because Brevard's attorneys  believed the county likely would lose if it the case went to trial.

But Brevard County Assistant Information Technology Director Lois Boisseau said it's also "the right thing to do," because the county should be accommodating people who have disabilities, as well as it being required by law. 

For counties and cities these days, legal issues with ADA compliance no longer focus on things like curb-cuts in sidewalks, but rather on high-tech issues like websites and video closed-captioning, according to Assistant Brevard County Attorney Melissa Powers.

Melbourne resident Camille Tate, president of the Melbourne/Space Coast chapter of the National Federation of the Blind of Florida, applauds Brevard County's efforts to make its website more accessible to the blind, as well as other reforms the county has taken.

"It's an extremely important issue, because, for a lot of us, we want to live independently," said Tate, a Melbourne resident and student at Eastern Florida State College.

"Having government documents and government websites accessible is important because that's how we, as the blind, interact with our government. We can keep track of what's going on in our county, state and federal governments. Without access to that information, we're in the dark — no pun intended — and can't interact with our government officials."

Camille Tate of Melbourne, who is blind, uses Job Access With Speech, a computer screen reader program that allows blind and visually impaired users to read the screen with a text-to-speech function. Tate president of the Melbourne/Space Coast chapter of the National Federation of the Blind of Florida, and is supportive of Brevard County's efforts to make its website more accessible to the blind.

Representatives of Brevard County and local cities contacted say they have received relatively few complaints from residents about ADA compliance.

But Brevard County ADA Coordinator Brian Breslin says the population potentially affected is significant. He said that, as of 2017, there were 97,735 people with disabilities across all age groups in Brevard County, according to the American Community Survey from the U.S. Census Bureau.

Still, Tate said she is not thrilled about the tactic that some lawyers and their clients use in getting local governments to comply — filing lawsuits without warning, then getting a quick financial settlement and an agreement that the government body would comply with ADA rules. She calls it "click-by" lawsuits.

Tate said she would prefer to have people with disabilities inform the government body of deficiencies, then ask for changes to make the websites more accessible.

It's an approach counties and cities would prefer, too.

Widespread lawsuits

Brevard County is one of many local government entities caught up in ADA compliance lawsuits. The cities of Cocoa and Melbourne are others.

Samantha Senger, assistant to the Cocoa city manager and the city's public relations specialist, said Cocoa settled its case, and has worked to comply with the mandates of the ADA.

"It's a large undertaking," Senger said, involving not only updating the city's website, but also training staff to make sure everything posted there is compliant with the requirements.

Senger said Cocoa was approached last year to produce certain documents that were found on its website, so that they are in an ADA-compliant format that could be read by a screen reader.

"We were not able to produce all of the requested documents in that format by the time frame stated in the request, and entered in to a settlement agreement with the requestor," Senger said.

The settlement included a payment of $9,500.

"I want to emphasize that this is something we should do," Senger said. "The lawsuits are forcing organizations to come into compliance faster. We want to make sure that all of our residents are able to access our information, and this is why we are striving for compliance. It's the law, and we should do it."

As part of its efforts, Cocoa recently hired a digital communications coordinator who handles ADA compliance as it relates to the city's website and digital documents. This person also handles website administration, social media, video production and some special events. 

Cocoa also hired a company called Web AIM that Senger said is a leading provider of web accessibility services and training. A Web AIM representative came to Cocoa to train about 25 members of the city's staff on document accessibility. The cost for this one-day training and some online training licenses was $5,000, Senger said. 

Cocoa also is spending $3,200 a year on a program that, among other things, helps scan content on Cocoa's website to assure it is ADA-compliant.

What has made ADA accessibility even more challenging, Senger said, is that federal guidelines related to ADA compliance for websites hadn't been fully detailed at the time of the lawsuit.

"We're trying to do the best we can from what we're given," Senger said.

Senger emphasized that, while "the lawsuit kind of made it happen quicker," the city already was working to comply.

"These things weren't done because of the lawsuit," Senger said. "These things were done to be compliant with the law."

Claims of 'shame' and 'humiliation' 

Melbourne also settled a similar lawsuit, and has revamped its website to comply, according to Cheryl Mall, the city's public information officer.

The Melbourne case, filed in March in U.S. District Court, was similar to a number of others. It was filed by two Miami lawyers on behalf of a man who was legally blind and has a guide dog.

The lawsuit cited 20 documents on the Melbourne's website that the man could not read with screen reader software that is used by people who are blind or otherwise visually impaired. The lawsuit claimed that was a violation of the American with Disabilities Act of 1990 and the Rehabilitation Act of 1973.

"As a result of defendant's actions," the lawsuit claimed, "plaintiff has been damaged, and has suffered injuries and shame, humiliation, isolation, segregation, experienced emotional suffering, pain and anguish, and had been segregated and prohibited from enjoying the programs, services and activities offered by city of Melbourne to residents and visitors through the knowledge gained from its electronic service documents and through participating in the government of city of Melbourne."

The suit said the city's website represented "a virtual barrier" to the plaintiff, and Melbourne was "blatantly discriminating" against people with visual impairments.

Without admitting fault, Melbourne settled the case in August, agreeing to a "compromise settlement … to avoid future litigation and attendant costs." The settlement included paying the plaintiff and his lawyers $9,500.

The lawsuit against Melbourne had many similarities to the lawsuit filed against Cocoa in February and settled in April — same plaintiff, same plaintiff's attorneys, similar wording, even the same settlement amount of $9,500.

'Low-hanging fruit' 

Several Brevard County commissioners initially expressed concern when they were first informed of the lawsuits filed against them last year.

On May 22, 2018, county commissioners held an hourlong private "executive session" with their attorneys to discuss the lawsuits. 

At that session, then-County Commission Chair and current Vice Chair Rita Pritchett expressed frustration at the way the lawsuits were being sprung on governments without contacting them first and giving them a chance to fix the problem before taking them to court.  

“That’s pathetic. They should have at least called and said: 'Hey, can you fix this?' " Pritchett said, according to a court reporter's transcript of the meeting.

But Michael Roper, an Orlando attorney who was helping represent Brevard County in these cases, recommended to county commissioners that they should settle. If they didn't, he said, the county left itself open to the possibility of a costly class-action lawsuit "that creates a real danger and problem for the county," as well as negative publicity.

"I think a case like this will be very attractive to folks in these advocacy groups and disability-rights organizations," Roper told commissioners at that meeting. "The website is currently not in compliance with what we believe will ultimately be the guidelines and the standards which the court will require."

Roper told county commissioners that such cases are common, saying: "At some point in time, we stopped looking. But we counted like 400 lawsuits."

Frank Mari, another outside counsel for the county on these cases, told commissioners that some lawyers suing government entities on this issue "are literally churning these lawsuits out" and "picking what they see as low-hanging fruit." 

Roper called it "sort of a serial operation" by lawyers handling such cases.

Then-County Commission Vice Chair Kristine Isnardi commented at the meeting that "it's so sad that someone would take something that protects people, and use it to profit like that."

Two days later, county commissioners in open session approved the settlements without debate.

Technological challenges

Mall said Melbourne has been working to make its website content ADA-compliant — but not without obstacles.

"The problem is all the gazillions of PDFs on our website," Mall said, because they have to be converted to another form so that a blind person can be able to read them though special technology.

Other challenges included road maps, blueprints and the like, which have to have explanations so a blind person can know what they show.

Melbourne spent $9,300 for a website redesign to be ADA-compliant, although it received an $8,000 credit for the work from its vendor because it stayed with the same company, Mall said.

Melbourne also plans to begin post online videos of its City Council meetings with closed-captioning to assist people who are deaf or hearing-impaired.

Anda Skambraks, production assistant II, and Logan Hemenway, production manager, in the Space Coast Government Television production room. Brevard County now is offering closed captioning for the broadcast of County Commission meetings, and taking other steps to be compliance with the Americans with Disabilities Act provisions.

Brevard County already had its County Commission meetings closed-captioned on its YouTube channel.

But it recently significantly upgraded that effort, according to Logan Hemenway, production manager for the county's Space Coast Government Television operations.

Now, County Commission meetings are closed-captioned on the county's Space Coast Government Television website while the meetings are in progress, using contracted captioners who are typing what's being said while the meetings are going on.

It costs the county about $19,000 a year for that closed-captioning service, according to Brevard County Information Technology Director Jeff McKnight.

The county received some complaints before and during Hurricane Dorian, when Communications Director Don Walker did some joint Facebook Live sessions with Brevard County Sheriff Wayne Ivey. Those videos did not have captioning or a sign language interpreter.

Walker said the county is working on options to make such future Facebook Lives delivering critical public safety messages are accessible to people who are deaf.

Jayme Ward, webmaster with Brevard County, trains employee Torrey Cranston in how to create charts, text and other online services to be compliant with the Americans with Disabilities Act provisions.

The county also had to make changes in the colors on its website to better accommodate people who are colorblind, and may not, for example, be able to distinguish between the shades of blues and greens that are prominent on the website.

Brevard County government's webmaster, Jayme Ward, now spends 75% to 80% of his time dealing with ADA compliance issues, including training county staff on preparing and posting documents to assure they are ADA-compliant. Ward said every county document now must be handled by four people for that purpose — the document creator, a "clearance agent," an information technology staff member and himself.

Ward said he also has trained more than 700 county employees on ADA issues.

"Jayme has embraced this and has been very passionate about this," McKnight said.

In addition, Breslin, the county's ADA coordinator, teaches classes on discriminatory harassment — a class mandatory for all county employees to take. As part of that class, he talks about why the county needs to have accessible documents, and shows those in the class examples of inaccessible documents in a screen reader, as well as showing color contrasting information pertinent for people who are colorblind.

'It's a good thing'

County Commissioner John Tobia said he is supporting of the county's efforts.

"Any time we can make government more accessible to people with disabilities, it's a good thing," Tobia said. "The idea is to make government as accessible to everyone as possible."

Tate — who has addressed the County Commission several times in support of increasing public transportation service — said she has noticed improvements in document accessibility for people who are blind. For example, Tate said, she was able to easily access details of the county budget online this year, something she had trouble doing in the past.

But it's a never-ending process, county officials acknowledge.

"You're never going to reach 100%," McKnight said.

Mall said the legal actions against Melbourne and other cities acted as somewhat of a wakeup call.

"We realized we've got to jump on this," Mall said. "We've got to be proactive."

Dave Berman is government editor at FLORIDA TODAY.

Contact Berman at 321-242-3649

or dberman@floridatoday.com.

Twitter: @bydaveberman