Twenty Years ago This Month

Old Zinnies continues to pay for resistance.

EDITOR'S NOTE: This article is from MCIL twenty years ago this month. The Center had embarked on a campaign to make Zinnies accessible for our community. The resistance to accessibility was more expensive welcoming our community, but the lesson was slow in coming. From the MCIL Journal back in 2003.

Old Zinnies has provided the most recent resistance to the 1990 Americans with Disabilities Act (ADA) and have staked the legitimacy of their Tennessee liquor license to avoid extending customer access.

The restaurant and bar has settled with a pro se plaintiff, in part stating that further compliance may cause the establishment to fall below the state’s legal business requirements.

In reality, Zinnies was in jeopardy of losing its liquor license before the pro se lawsuit was filed. Patrons had noticed non-bar seating for only seventy-one patrons more than a year ago. The Tennessee Alcohol Control Board requires 75 non-bar seats for the state liquor license. In fact, the manager of Zinnies, William Baker meeting with ADAPT on September 22, 2001, admitted that he met that state requirement only because of creative seat counting techniques.

In an ORDER OF JUDGMENT filed by Judge John McCalla in December of 2002 Zinnies was ordered to install a ramp to the front entrance of the restaurant at 1688 Madison in 60 days. Advocates for people with disabilities are disappointed that judgment did not go further to require a permanent ramp. Zinnies could have chosen to provide a permanent ramp at any time to diffuse the situation. Instead, Zinnies pushed and was successful in being ordered to supply minimal access by claiming that their state liquor license was in jeopardy. “Such compliance and method is not ‘readily achievable’,” Zinnies argued in

their Offer of Judgment, “due to its loss of any number of seats in the restaurant would certainly cause the loss of the corporations liquor license [p. 2].”

Zinnies has had several opportunities to build a ramp and abruptly end the pressure that now threatens their license. Although William Baker, the manager of Zinnies, had promised to build a ramp back in the fall of 2001, he never kept that promise. Even after the pro se plaintiff filed suit in federal court againstZinnies, building a ramp would have completely derailed the advocate’s efforts because the ADA does not allow individual plaintiffs to recover any damages.

“Five dollars of concrete would have completely upset the advocacy efforts at Zinnies. It would not have made a good ramp, but it would shown some effort on their part and wrecked the pro se legal approach,” said Tim Wheat who has built more than 30 wheelchair access ramps in Memphis. “It is incomprehensible why they would spend thousands of dollars to basically keep their customers from getting in.”

Similar the resistance of Yosemite Sam’s down the street, Zinnies opted to spend an estimated five times on lawyers what they could have spent to provide minimal access to their customers, without endangering their business. Zinnies, of course, has the right to use the court system to better define theirrights and responsibilities under the ADA. Zinnies had their lawyers resist access; however, while seemingly never approaching the concept of using their resources to provide a way into the store for their customers.

For Zinnies, the cost of the legal services continues indefinitely. Now that the legitimacy of the state liquor license is entangled with accessibility, the restaurant lingers on the edge of validity. If the seatingarrangement is changed, the space inside the business is altered, the restrooms suddenly need modifications or the state waives the minimum seat rule, the lawyers will be called on to protect the licenses.

On the other hand, the advocates for accessibility, who have not spent a dime in legal fees, hold all the cards. At their leisure they may press the state to waive the minimum seat rule, which would most likely open a new round of legal costs for Zinnies. Even if the state is not willing to waiving the minimum seat rule, advocates may complain that Zinnies does not meet local code requirements, or does not live up to the terms of the settlement. Every action seems to encourage Zinnies to become accessible; yet, Zinnies has invested their time, effort and funds in resisting accessibility and spiraling up the costs.

The ADA is a tool for individuals to protect and assert their civil rights it does not ultimately define equality and assimilation of people with disabilities in America. There is a price to pay to leave the definition of civil liberties to the legal community. The price is of course paid to lawyers who profit from the legal wrangling regardless of the outcome.

Clift Notes: The Great Gathering-In

A Return to The Great Gathering-In

2023 Washington Seminar

By Christina Clift, Disability Connection

After a two-year absence from our nation’s capital, at 5:00 PM on Monday January 29, 2023 members of the Memphis chapter of the National Federation of the Blind along with more than 750 of their fellow Federationists came together once again for the Great Gathering-In. At the Capitol Holiday Inn in Washington D.C. with our canes at the ready, guide dogs harnessed, and our legislative priorities set, we were ready to return to face-to-face meetings with our members of Congress. 

The Great Gathering-In serves as the opening session for the NFB’s Washington Seminar. Washington Seminar is an annual event of the National Federation of the Blind which introduces the organization’s legislative priorities requiring congressional attention over the coming year. 

The issues are selected from official positions of the Federation and may address concerns in the following areas: 

• relevant civil rights issues; 

• educational programs and services; 

• rehabilitation of the blind for competitive employment; 

• the operation of vending facilities by blind persons on public property; 

• specialized library services for the blind; 

• the organization and funding of federal programs; 

• Social Security and Supplemental Income programs;

• and other timely topics. 

Usually, three legislative initiatives are chosen for priority attention during the Washington Seminar. During this three-day period members of the Tennessee delegation learned about and advocated for initiatives that will improve the lives of blind Americans.

We learned how to talk with our local representatives and Senators about issues on the NFB’s legislative agenda and about bad public policies that attempt to relegate us to second-class citizenship. 

On a rainy Tuesday morning we swarmed Capitol Hill to speak with Tennessee legislators about our concerns and demand they sponsor legislation that will benefit the Blind. The 2023 legislative priorities included fixing the Social Security cliff, ensuring website and software app

accessibility, and requiring that home medical devices are accessible. Here is a summary of the issues we discussed.

The Blind Americans Return to Work Act

Social Security law currently contains a policy that has the unintended consequence of discouraging blind Americans from maximizing their earnings potential. The Social Security Disability Insurance (SSDI) program has a built-in earnings cliff Title II of the Social Security Act provides that disability benefits paid to blind beneficiaries are eliminated if the beneficiary exceeds a monthly earnings limit. This earnings limit, often called the earnings cliff, is in effect a penalty imposed on blind Americans when they work. 

For example, the earnings limit in 2023 for a blind person is $2,460 per month. If a blind individual earns more than that threshold, even by just one dollar, they are engaged in substantial gainful activity (SGA). Under the current law, any individual engaged in SGA is not entitled to any SSDI benefits. This means that if a blind person earns just one dollar over the earnings limit, all benefits are lost.

Under this proposed legislation the earnings cliff would be eliminated by instituting a two-for-one phase-out of earnings over the SGA limit. This would mirror what happens if you receive SSI benefits. Next, it would simplify the SSDI system by eliminating the trial work period and grace period, making the rules more compatible with the Supplemental Security Income (SSI) program.

Under the proposed system, the SSDI program would become less complicated. With both programs using similar rules, there will be less confusion, and the incentive for blind people to return to work will be consistent and clear. Finally, it would create a true incentive program

that encourages blind Americans to return to work, seek out job advancement, and ultimately pay more into the Security Trust Fund.

Websites and software Applications Accessibility Act

Websites are required by law to be accessible, but without implementing regulations most businesses and retailers have little understanding of what accessible means. Websites and mobile applications are an essential part of modern living. With 41 million people with disabilities in the U.S., website accessibility can not stop when it reaches us. 

There are more than 307 million Americans accessing the internet, with 81% accessing it at least once a day. This includes Americans with disabilities. In 2010 the U.S. government

published an advance notice of proposed rulemaking to address website accessibility, but the Department of Justice failed to publish an advance notice of proposed rulemaking to address website accessibility, and by extension, final regulations.

Without these final regulations in place, blind and disabled Americans face significant difficulty in electronically accessing businesses, applying for jobs, or working due to the barrier of website inaccessibility.

This act would Direct the Department of Justice (DOJ) and Equal Employment Opportunity Commission (EEOC) to promulgate accessibility regulations. The DOJ and EEOC will have twelve months following the enactment of the legislation to issue a notice of proposed rulemaking regarding website and mobile application accessibility, then an additional twelve months to issue the final rule. It would also establish a comprehensive statutory definition of

accessibility. Finally, it would establish a technical assistance center to provide technical assistance and support covered entities.

Medical Device Nonvisual Accessibility Act

Inaccessible digital interfaces prevent blind individuals from independently and safely operating medical devices that are essential to their daily healthcare needs. Medical devices with a digital interface are becoming more prevalent and less accessible for blind Americans. 

Most new models of medical devices, such as glucose and blood pressure monitors, along with the emergence of in-home devices that offer medical care options, such as chemotherapy treatments and dialysis, require consumers to interact with digital displays or other interfaces. This new technology is constantly being developed and deployed without nonvisual accessibility as an integral part of the design phase, which creates a modern-day barrier.  The inaccessibility of these medical devices is not a mere inconvenience; when accessibility for blind consumers is omitted from the medical technology landscape, the health, safety, and independence of blind Americans are in imminent danger.

This act Calls on the Food and Drug Administration (FDA) to promulgate nonvisual accessibility regulations for Class II and Class III medical devices. The FDA will consult with stakeholders with disabilities and manufacturers and issue a notice of proposed rulemaking

no later than twelve months after the date of enactment of the act. No later than twenty-four months after the date of enactment of the act, the FDA will publish the final rule including the nonvisual accessibility requirements. 

Next, it requires manufacturers of Class II and Class III medical devices to make their products non-visually accessible. Manufacturers will have twelve months following the publication of the final rule to ensure that all the Class II and Class III medical devices they produce are non-visually accessible. Finally, this act authorizes the FDA to enforce the non-visual access requirements for Class II and Class III medical devices.

“Washington Seminar demonstrates the power of the Blind as a collective voice for change,” said NFB of Tennessee President James Brown. “It’s a powerful sound hearing hundreds of white canes tapping their way around Capitol Hill.” 

We invite anyone who is interested in advancing the cause of blind Americans to join us in 2024 in D.C. We hope to see you at our Great Gathering-In, so you can become a part of creating change in the lives of the blind.

MLK Community Role Models

The 30th Annual Dr. Martin Luther King, Jr. Commemorative Award Program Honoring Outstanding Students and Community Role Models

Sponsored By: Citizens For Better Services

Place of Program: Union Valley Baptist Church

1051 East McLemore  

Sunday, January 8, 2023 at 2:30p.m.

Pastor Walter Gray, Jr., Host Pastor  

Theme: Making A Dream A Reality

Program in Memory of: The late State Representative Barbara Cooper, District 86 The late Dr. H.O. Kneeland, Jr , Longest Serving Pastor of Union Valley, Baptist Church

Special Guests:

• Mayor Elect Jaylen Smith of Earle, Arkansas and Youngest Elected Mayor in America
• Mr. Justin J. Pearson, Co-Chair, Memphis Community Against Pollution
• Former Shelby County Commissioner Terry Roland
• Miss Memphis-Shelby County Scholarship Organization
• Men With Soul Band
  
• Ms. Rosemary Winters, Soloist
• Tyler Lewellen, Pianist, Overton High School
• Travelling Kings Gospel Quartet
• Ridgeway High School Choir
• Dr. Michael Hollowell, Historian and Author

For Further Information, please email Mr. Johnnie Mosley, Chairman, Citizens For

Better Service, at mosleycarter@aol.com.

2022 Tennessee Disability Scorecard

 From the Tennessee Disability Coalition

Yesterday, with the expertise of our members and Policy Team, the Tennessee Disability Coalition released our inaugural Tennessee Disability Scorecard.   Inspired by the tremendous amount of phone calls we receive from current and future Tennesseans, as well as policy priorities voiced by our membership; the 2022 Scorecard outlines eight policy priority areas for working Tennesseans with disabilities.   Across these priorities, letter grades were given to the State of Tennessee based on primary and secondary research compiled by the TDC, and will be reviewed and released annually to ensure the lived experiences of our community are at the forefront of all policy decisions made by state leaders including lawmakers, appointed commissioners, and municipalities.   Overall, the State of Tennessee received a grade of D+ for working adults with disabilities, and was comprised from the following:   Priority: Housing Grade: F 80 of Tennessee’s 95 counties do not have affordable housing for working people with disabilities.   Priority: Employment Grade: D+ 33% of Tennessee workers with disabilities are employed, compared to 78% of workers without disabilities. This ranks Tennessee 44th out of all 50 states.   Priority: Transportation Grade: C- Tennessee ranks 39th in the US for quality of public transportation.   Priority: Medical Debt Grade: F Tennessee has the 5th highest percentage of adults with medical debt in the country.   Priority: Home Healthcare Worker Crisis Grade: F Tennessee ranks 43rd in the US for the availability of home healthcare workers, with only 13 workers for every 100 Tennesseans needing care.   Priority: Sales Tax Burden Grade: A Like nearly all states, Tennessee does not tax the sale of durable medical equipment, prescriptions, and mobility devices.   Priority: Affordability of Care Grade C+ The AARP ranked Tennessee 35th in the affordability of care for people with disabilities based on relatively low home health care costs, but 49th in consumers’ ability to access these home healthcare services.   Priority: Support for Family Caregivers Grade: F Given the critical shortage of home healthcare workers across the country, AARP ranked Tennessee 49th in supporting family members caring for loved ones with disabilities based on state policies.   We hope you will share this report with your communities, stakeholders, and people of influence. In a spirit of coalition, we look forward to working together to improve these outcomes on behalf of all Tennesseans both present, and future.   More information can be found in the full Scorecard including citations and graphics, and is available on the TDC’s website using the following link: https://www.tndisability.org/tennessee-disability-scorecard.   -TDC Policy Team