In a letter sent today, the American Civil Liberties Union of Michigan charged Mackinac Island officials with violating the Americans With Disabilities Act by refusing to grant a resident with multiple sclerosis his request to use an electric-assisted tricycle.
The resident, Donald Bertrand, cannot ride a bicycle -- the primary form of transportation in the community -- because his disability has affected his stamina and balance. To accommodate the disability, Mr. Bertrand needs an electric-assisted tricycle; on those occasions when he cannot make it up a hill, he is able to switch on the tricycle’s silent motor to give him a boost. Bertrand has repeatedly asked the Island for permission to use the tricycle, but the Island has refused, citing its policy prohibiting motorized vehicles.
“Mackinac Island already makes exceptions to its no-motorized-vehicles policy to allow the use of snowmobiles and golf carts,” said Stewart R. Hakola, cooperating counsel for the ACLU of Michigan. “Refusing to let Don Bertrand tricycle is both discriminatory and unjust.”
The ADA requires that government entities accommodate people with disabilities to promote equal enjoyment of, and access to, public services and facilities. A recent Supreme Court decision found that a case-by-case inquiry was required to determine whether an accommodation such as the use of a golf cart for a golfer with a disability in the PGA tournament would cause a fundamental change to the activity. The court sided with the golfer. PGA Tour, Inc. v. Martin.
“Riding bicycles is part of Mackinac Island’s tradition,” said Michigan ACLU Executive Director Kary Moss. “The Island is violating the Americans with Disabilities Act by denying Don Bertand an equal opportunity to participate in that tradition.”
The ACLU is negotiating with city officials in an effort to resolve this out of court. However, if negotiations are unsuccessful, the ACLU has threatened legal action.
“I love Mackinac Island,” said Bertrand, “but the message I’m getting is that people with disabilities are not welcome on the island.” Mackinac officials have already issued tickets to other residents with disabilities for using electric-assisted bicycles.
The letter sent follows:
June 7, 2002
David D. Waddell, Esq.
Attorney for Mackinac Island
Fraser Trebilcock Davis & Dunlap, P.C.
1000 Michigan National Tower
124 West Allegan St.
Lansing, MI 48933
Fax: (517) 482-0887
Tom H. Evashevski, Esq.
Attorney for Mackinac Island
Brown & Brown
132 North State St.
Saint Ignace, MI 49781
Fax: (906) 643-7157
Re: Donald Bertrand’s Request for a Reasonable Accommodation
Dear Mr. Waddell and Mr. Evashevski:
As you know, we have been retained by Donald Bertrand in his efforts to secure a reasonable modification, based on his individualized circumstances, to Mackinac Island’s policy barring his use of an electric-assisted tricycle. Since the beginning of the season, Mr. Bertrand has not ridden his tricycle, but has spent his time pursuing virtually every means of securing a permit that would allow him to enjoy one of the central aspects of Island life. He has submitted the appropriate forms; he has spoken to the Mayor; he has spoken to the chief of police; and the list goes on. We strongly urge you to find a reasonable accommodation for Mr. Bertrand. This situation can and should be resolved out of court.
Mr. Bertrand has multiple sclerosis, a physically disabling condition that substantially limits his major life activities. Although people with M.S. may face pain and frustration in the course of their day-to-day activities, they do what they can to keep fit with the knowledge that exercise may slow the degeneration of the central nervous system, a process that can lead to the loss of vision, coordination, speech, and strength.
Riding a traditional two-wheeled bicycle became impracticable when the disease took much of the strength on Mr. Bertrand’s left side. He could no longer put out his left foot quickly when he stopped at an intersection. He began to fall. Mr. Bertrand loves to cycle around Mackinac Island and, because of the Island’s policy, he is forced to confront the possibility of losing that pleasure even before the disease takes it.
To continue to cycle around the Island, Mr. Bertrand has identified a fundamentally reasonable solution: a tricycle with a virtually silent electric motor. The three wheels lend him stability and he is able to turn on the motor when he occasionally needs a boost. The Island has rejected this alternative in the name of tradition. Instead, the only permitted alternatives are an electric wheelchair or a three-wheeled cart, some of which nearly match the top speeds of the electric motor on Mr. Bertrand’s tricycle.
Mr. Bertrand does not yet need a wheelchair to get from place to place in everyday life. He just sometimes needs a little help riding into the beach wind, riding up the steep hill on his way back home, or when the fatigue caused by the disease becomes overwhelming. He does not aim to circumvent the rules of Mackinac Island he wants to participate in one of its grand traditions.
Mr. Waddell’s letter of May 6 suggests that Mr. Bertrand will undermine the historic atmosphere of Mackinac Island should he be granted authorization to use a “moped.” However, it is important to note that Mr. Bertrand’s electric-assisted tricycle is very different from traditional mopeds. By definition, a moped is a motorized bicycle powered by a gasoline engine. American Heritage Dictionary (3d ed. 1996). This tricycle is not the loud, smog-spewing, four-stroke moped from World War II movies. The maximum speed of Mr. Bertrand’s tricycle is just 10 miles per hour and it makes less noise than an electric wheelchair.
The Island’s refusal to permit Mr. Bertrand to ride his tricycle is irrational given the other exceptions to its no-motorized-vehicle policy. The most prominent is the policy’s allowance for faster, more dangerous, and far louder snowmobiles. Construction equipment, golf carts, motorized wheelchairs all travel the Island under certain limitations of time or designated area. Mr. Bertrand simply seeks a temporary permit to use a device that would allow him to enjoy the Island without unduly burdening the Island or interfering with other Island residents. It is difficult to see how that would not be a reasonable accommodation.
The failure to provide Mr. Bertrand with a reasonable accommodation violates Title II of the Americans with Disabilities Act. Although Mr. Waddell cites Title I employment cases, this is a Title II case for discrimination in providing access to public services. Title II provides broader protection to individuals with disabilities than Title I. See, e.g., Popovich v. Cuyahoga County Court of Common Pleas, 276 F.3d 808, 820 (6th Cir. 2002)(Ohio).
While some Title I cases may be relevant to the present situation, Title III, which addresses discrimination in access to public accommodations, services, and facilities, is more readily analogous. 28 C.F.R. 36.202. The Title III case of professional golfer Casey Martin provides such an analogous situation. Martin’s right leg has atrophied due to a degenerative circulatory disorder, rendering him disabled under the definition of the ADA. PGA Tour, Inc. v. Martin, 532 U.S. 661, 668 (2001). It was not merely uncomfortable for him to walk the course as required by the Professional Golf Association; it was impossible. Id. The PGA’s refusal to accommodate him led to a lawsuit that went all the way to the Supreme Court. As in the present situation, the Martin case was a clash between the ADA and a desire to preserve tradition.
The PGA argued that making an accommodation for Martin would lead to a golf cart traffic jam along the fairways of the United States. In fact, that has not come to pass. In Martin, the Court found that allowing persons with disabilities to use golf carts would not fundamentally change the nature of the PGA tour or the game of golf. Id. at 690. Expanding the hole from three inches in diameter to six inches would. Id. at 682. The PGA, the Court held, violated the ADA by failing to reasonably accommodate Mr. Martin.
Both the Supreme Court and the Department of Justice interpret the ADA as demanding an individualized exploration regarding whether a modification of standard policy would cause undue hardship or profoundly change the unique nature of the Mackinac experience. See, e.g., Martin, 532 U.S. at 668 (“an individualized inquiry must be made to determine whether a specific modification for a particular person’s disability would be reasonable under the circumstances as well as necessary for that person, and yet at the same time not work a fundamental alteration”); Department of Justice, Americans with Disabilities Act Title II Technical Assistance Manual, II-3.4400 (1993). Such an individualized inquiry into Mr. Bertrand’s tricycle would reveal that its classic styling and virtually silent engine are more in line with the traditional charm of the Island than the other exceptions that have been made.
To bring suit under Title II of the ADA, the plaintiff must allege he or she is being denied access to a public “service, program, or activity” under the ADA. 42 U.S.C. § 12132. The opportunity to ride a bicycle in the City is indeed a “service, program, or activity.” As the Sixth Circuit has found, this provision must be read broadly such that “the phrase ‘services, programs, or activities’ encompasses virtually everything that a public entity does.” Johnson v. City of Saline, 151 F.3d 564, 569 (6th Cir. 1998). Accordingly, the licensing of bicycles and prohibition of electric-assisted bicycles constitutes a service, program, or activity.
Another requirement for coverage under the ADA is that an individual meet both disability and eligibility requirements. Mr. Bertrand is a qualified individual with a disability. Multiple sclerosis substantially limits his major life activities. He is also qualified to ride his bicycle in the City, as he meets the essential eligibility requirements of being a lawful resident who has applied for a bicycle license, but was denied. See Coleman v. Zatechka, 824 F. Supp. 1360, 1368 (D. Neb. 1993)(disabled university student met essential eligibility criteria to be assigned a roommate, as he was admitted to the university and submitted a proper application for a roommate).
On the merits, the denial of Mr. Bertrand’s request for a reasonable accommodation violates Title II and its implementing regulations.
¨ Mr. Bertrand’s opportunity to ride a bicycle in the City is “not equal to that afforded others,” as he cannot ride uphill without an electric assistance due to his disability. 28 C.F.R. 35.130(b)(1)(ii).
¨ It has been suggested that a stationary bicycle could serve Mr. Bertrand’s exercise needs. This solution falls far short because it prevents him from participating in a basic feature of Island living transportation by bicycle and he is thereby denied the right to a service which is as effective as that provided to others. 28 C.F.R. 35.130(b)(1)(iii).
¨ Further, the heart of this case is the City’s refusal to allow a reasonable modification of its policy barring motorized vehicles. Such an exception would not constitute a fundamental alteration of the nature of transportation on the Island. 28 C.F.R. 35.130(7). Although such a fundamental alteration is claimed, there has not been an adequate effort to make the individualized inquiry required by the ADA. See, e.g., PGA Tour, Inc. v. Martin, 532 U.S. 661, 668 (2001).
We believe that such an individualized consideration of Mr. Bertrand’s case focusing on such factors as the speed at which his tricycle travels, the noise created by the electric motor, how often he uses the electric assist, and other factors would clearly lead to the conclusion that Mr. Bertrand’s use of the electric assist is necessary for him to cycle on the Island and does not impose a threat to the Island’s tradition and tranquility. As you have been made aware, Mr. Bertrand engages the electric assist only in limited circumstances, such as when fatigued, going up a hill, or along a windy stretch of beach road, and the noise and speed produced by the motor are minimal.
Mr. Bertrand would rather be able to ride a regular bicycle into a headwind everywhere he goes rather than have multiple sclerosis, but necessity leads to a need for a reasonable accommodation. Modification of the permit procedure in accordance with the ADA would allow for distinguishing between those who want and those who need an electric-assisted bicycle or tricycle.
In passing the ADA, Congress was explicitly mindful of the existence of more than 43 million citizens with disabilities facing “pervasive” exclusion from the mainstream by means ranging from outright. intentional discrimination to “the failure to make modifications to existing . . . practices.” 42 U.S.C. 12101(a)(1), (2), and (8); Martin, supra at 674-75. In short, the ADA is a comprehensive national mandate to rework society to allow citizens with disabilities full access to the mainstream.
Accordingly, we ask that you reconsider your refusal to make the requested accommodation. Mr. Bertrand needs a permit soon if he is to enjoy the season. Our client wishes to resolve this problem quickly, and that can be done out of court. However, if an accommodation is not granted soon, we will be forced to take appropriate legal action.
Thank you for your prompt consideration of this matter.
Very truly yours,
Stewart R. Hakola
Cooperating Counsel for the ACLU of Michigan
401 N. Front St.
Marquette, MI 49855-3523
Michael Steinberg, Legal Director
Justin Weyerhaeuser, Legal Intern
Direct Dial: (313) 578-6814
cc: Donald Bertrand