Erin talked with me about Americans with Disabilities Act issues and the proposed Temporary Use rules for food carts and comments made during a meeting between cart owners and Bend council members. During that meeting a City of Bend representative characterized the ADA as "the sleeping dog." One that the food cart owners best not wake, seemed the inference. Cart owners shared in hearing the same comment.
Erin accurately captured my frustrated response. "I think the City of Bend has just done a really poor job on managing interactions like this from the get-go."
That a COB representative would extend long-term institutional bias and say that equal access under ADA is an undesirable thing is troubling.
Further, while the city must follow the rules of this 22-year-old civil rights law, city staff does not enforce ADA compliance with local businesses, including food carts. There seemed to be confusion about this, including by some staff members, so it is worth summarizing roles.
1. Local governments (Title II entities in the ADA) like COB, must follow the ADA in their own programs, services, structures and infrastructure.
2. Private enterprises (Title III entities or "Places of Public Accommodation" in the ADA) must comply as well. Food carts are Title III entities and have ADA compliance obligations. (I'm not sure what they are beyond an accessible route to the cart. This is something owners need to determine.)
3. City staff does not enforce ADA with Title III entities. That is the Department of Justice's role. Just as the DOJ enforces ADA with Title II entities, like the City of Bend.
4. COB staff does enforce Oregon Structural Specialty Code, or building codes, for the state with the private sector. OSSC Chapter 11 covers accessibility and is virtually a mirror of ADA accessibility guidelines.
5. Food carts do not fall under structures covered by OSSC11.
If city staff were to write accessibility rules applying to mobile food units into local development code, then staff would have the authority to enforce that code. Maybe that is where "the sleeping dog" lies? Some of the dust-up regarding Temporary Use rules was the proposal that undeveloped lots be paved to accessibility standards. But neither ADA accessibility guidelines, nor state building codes require pavement as the only accessibility option.
Both state codes and federal standards use the same general ground surfacing accessibility language: "Firm, stable and slip resistant." That standard is met in some venues by something as simple as hard packed dirt or compacted crushed granite. Local development codes can specify surfaces, like pavement in a shopping center, but that is not a function of the ADA.
At the April 4 Council meeting Councilor Mark Cappell asked Chris Lohrey, with Spork, about ADA issues at the lot Spork uses. (The Source article published earlier that day reported my comments that loose gravel surfacing on that lot created accessibility problems). Chris responded that he recently became aware of accessibility problems with the gravel and, although he does not own the lot, wanted to explore surface options that did not involve paving, which is expensive, to make Spork accessible to everyone.
Chris asked for my help in defining accessible surface options. I provided references. It will be fun to see what he decides to do to achieve "firm, stable and slip resistant." I look forward to helping within my limits as a layperson if he needs that assistance.
If Mark Cappell's interest in the Spork location means a surfacing expert from COB staff could assist Chris, that could be useful. What Spork, arguably the food truck "big dog," does for accessible surfacing could be applied by others in the industry in Bend. No "sleeping dog" necessary and everyone benefits when stakeholders collaborate to create good access.
In the mode of "everything is connected to everything else," this is a good time for surfacing discussions. I recently received a postcard announcing May as "Mobility Awareness Month." It included information stating that one third of people with permanent mobility disabilities in North America are military Veterans.
That made me recall the 20-something-year-old Veteran I met in Texas in January. He had both legs severed in Iraq. He was using a wheelchair. He said something that went about like this:
"When I walked around in my uniform, I was a hero. Now that I use a wheelchair, I sometimes get treated like the enemy for just wanting to get in to places I used to go."
Accessible surfaces are the first step for people like this veteran. He is, as I am, one of the roughly 11% of Americans who have permanent mobility disabilities. There are still more people temporarily disabled due to illness, surgery or accident. Why wouldn't food cart owners, or any other business owner, want to make it possible for these customers to come spend money?
Good access is good business. It brings in more customers and in some cases, access improvements can qualify a business for up to $10,000 in tax benefits. Equal access is also civil rights law. I imagine many business owners in Bend believe that discrimination is reprehensible and appreciate that removing barriers to equal access is the right thing to do. Equal access as defined in ADA is not "the sleeping dog" to be feared. Hopefully city representatives can appreciate that, too.