Tahoe Law Review: ADA requires temporary vehicle hand controls for test drivers? | TahoeDailyTribune.com

Tahoe Law Review: ADA requires temporary vehicle hand controls for test drivers?

Jim Porter
Law Review

The Americans with Disabilities Act requires businesses open to the public to "make reasonable modifications in policies, practices, or procedures … to individuals with disabilities."

Could the ADA require automobile dealers to install temporary vehicle hand controls for would-be test drivers with disabilities, no matter how expensive? That, my friends, is the question of the hour.

T10/11 PARAPLEGIC

John Karczewski is a level T10/11 paraplegic, who is paralyzed from the waist down. He drives a specially equipped vehicle with hand controls. Karczewski went to the DCH Mission Valley dealership and demanded installation of temporary vehicle hand controls for a test drive.

The dealership told Karczewski that they don't install vehicle hand controls on any vehicles, and they would not do so for him as an accommodation. You know what came next. Karczewski sued claiming his rights under the federal ADA were violated.

ADA LAW

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Karczewski relied on two separate ADA laws to make his case. The first as noted is "a failure to make reasonable modifications in policies, practices, or procedures … to individuals with disabilities."

The second was "a failure to remove architectural barriers where such removal is readily achievable … (which includes) installing vehicle hand controls."

The auto dealership responded arguing that installing temporary vehicle hand controls is not a modification "in policies, practices or procedures."

Further that "installing vehicle hand controls" has nothing to do with "removal of architectural barriers," i.e. that portion of ADA law is nonsensical and therefore unenforceable.

COURT OF APPEALS RULES

Two of the three Court of Appeals judges concluded that failure to install temporary vehicle hand controls is a modification "in policies, practices, or procedures." Not sure how they got there, but they did.

The majority also agreed that failing to install temporary hand controls is "a failure to remove architectural barriers where such removal is readily achievable." Again, not sure how hand controls are categorized as "architectural."

However, the majority of judges throttled back their ruling determining that if a car dealership could not easily install temporary vehicle hand controls, i.e. if it was not "readily achievable," they would not have to do so.

In other words, if temporary vehicle hand controls are an easy fix, it's required, if it would be difficult for any particular dealership, perhaps a small dealership without the proper tools and skilled mechanics, it would not be readily achievable and therefore not required.

ACQUIESCING DUBITANTE

One judge acquiesced, but in dubitante. I've never heard that term, so I wanted to throw it out to impress you.

According to a footnote in the opinion, acquiescing dubitante is a contrary opinion by a judge who is unhappy about the majority decision, but he "cannot quite bring himself to record an open dissent." Interesting. Sounds like indecision.

Nevertheless, I think I side with the acquiescing dubitante judge who struggled with how "a failure to make reasonable modifications in policies, practices, or procedures" has anything to do with vehicle hand controls, and also how "a failure to remove architectural barriers" has anything to do with vehicle hand controls.

The dubitante judge wrote in closing: "I question whether the majority has got this right. On the other hand, I don't have the full answer for the majority's analysis. I remain halted between two opinions, dubitante."

Dubitante to you.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. His practice areas include: real estate, development, construction, business, HOA's, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at porter@portersimon.com or http://www.portersimon.com.

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