Lawsuit: Disability group teamed up with Muskegon to allow inaccessible businesses

LANSING -- An advocate for people with disabilities says the city of Muskegon conspired with a local developer and a nonprofit that is supposed to advocate for the disabled to retaliate and discredit her, after she complained two businesses in a city-backed downtown revitalization project were not accessible to customers who use wheelchairs.

In a federal lawsuit, Eleanor Canter alleges the nonprofit Disability Network West Michigan, which has a contract with the city, gave the Heritage Square Commons project its “seal of approval,” despite the fact the project did not comply with the Americans with Disabilities Act.

Muskegon-based Disability Network West Michigan, which disputes the allegations, is one of 15 federally and state funded Centers for Independent Living across Michigan. Similar organizations exist across the country. According to its mission statement, it exists to empower and advocate for people with disabilities and ensure that accessibility is an accepted civil right.

A coffee shop and a barber shop that are part of the recent multi-million-dollar development in Muskegon are inaccessible to people in wheelchairs because there is no curb cut to allow access to their front doors, according to the lawsuit filed July 21 in US. District Court in Grand Rapids.

The city and the developer claim customers in wheelchairs can use a back door to access both businesses, according to the suit. But that door is frequently locked and the hallways leading from it to the businesses are sometimes blocked with stored items, the suit alleges.

When Canter continued to publicly raise concerns about the project, the city, the developer and the nonprofit worked together to criticize and try to discredit her, and the nonprofit sued her for defamation in Muskegon County Circuit Court, the suit alleges.

"It's been terrible, extremely stressful, and expensive," Canter, who has a neurological condition requiring her to use a mobility device, told the Free Press Monday.

"I consider myself to be a member of the independent living movement. It feels like betrayal from the one organization I should be able to trust, that should be my ally."

The suit alleges retaliation and violations of the Americans with Disabilities Act and the Michigan Persons with Disabilities Civil Rights Act. It seeks a judge's declaration that Canter's rights were violated and judge's orders prohibiting construction and maintenance of non-compliant businesses, as well as retaliation against Canter or interference with her free speech rights, plus unspecified damages and legal fees.

Diane Fleser, the CEO of Disability Network West Michigan, and Brad Hastings, its advocacy and ADA coordinator, are both named as defendants in the suit along with the organization itself.

Fleser said in a Monday email, copied to Hastings, that the organization does not comment on pending litigation, but "we dispute Ms. Canter’s claims and plan to vigorously defend against them."

The majority of both her board and staff are persons with disabilities, and Canter "has a long history of attacking DNWM and other disability advocacy organizations across the state," Fleser said.

The organization "is not an ADA enforcement agency and does not give anyone a 'seal of approval'," she said.

None of the defendants has yet filed a response to the complaint in federal court.

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According to the lawsuit, Disability Network West Michigan advertises paid consultation services for local businesses, "risk-free" ADA evaluations, and offers "seals of approval" with "no indication that a business must meet any particular standard or address any issues" to receive such an endorsement.

An artist's rendering published in the Muskegon Chronicle in 2014 shows the project was initially planned with accessible main entrances for all four retail units, according to the lawsuit. But two of those four accessible entrances -- one for tenant Drip Drop Drink coffee shop and one for tenant The Crue Barber Shop -- were apparently eliminated late in the planning before the project was constructed in 2017 and 2018.

Canter, a longtime advocate for the disabled, asked the city how the development "had been constructed, inspected, approved, and then opened for business without meeting ADA requirements," according to the suit.

Hastings, the ADA coordinator at Disability Network West Michigan, expressed similar concerns in an email to the city a few days later, in November 2018.

"The new Drip Drop Drink ... lacks an accessible entrance," Hastings wrote. "As this is new construction, and is a place of public accommodation, it is required to be accessible and to meet the 2010 Standards of Accountability."

But Hastings "quickly abandoned the concerns he had described" after the city began to partner with the Disability Network to create "a buffer from disfavored citizen complaints," the suit alleges.

The city had already begun to take a more "flexible" approach to downtown building inspections and code enforcement after it disbanded its building department in 2012 and privatized its inspection and permit services, the suit alleges.

The contract between the city and the Disability Network West Michigan was not formalized until August and September of 2019, but it was referenced in a city sent by a city contractor as early as March 2019.

Phil Ellison, Canter's Hemlock attorney, says Disability Network West Michigan used its relationship with the city to give more prestige to its seals of approval and to increase publicity and demand for its business consulting services.

The project's developer, Gary Post, who received from the city $800,000 in interest-free loans, plus tax credits, for the Heritage Square Commons project and an associated townhouse project, put the relationship with the Disability Network to use, the suit alleges, in a March 2019 email to Canter, which he copied to Hastings and the private firm handling Muskegon's inspections and permits.

"Good Morning, Ms. Canter!" Post wrote. "We met a few weeks ago with Brad Hastings from the Disability Network and Kirk Briggs from Safe Built, the City of Muskegon's inspection department. It was a very good meeting and we all agree that we are in compliance with the ADA. We did agree to add some signage to the building and still need to do that. Thanks for your concern!"

Post did not respond to a phone message Monday.

A few hours after Post sent his email, Briggs, who is also a defendant in the suit, sent Canter a more detailed email, copied to Post, the city manager, and the police chief, saying the city had "teamed with" the Disability Network with respect to the project and learned that the project was ADA compliant because three of its five entrances -- or 60% -- were wheelchair-accessible.

Canter takes the position, and the lawsuit alleges, that each place of public accommodation, not the overall project, must be ADA-compliant in terms of accessible entrances.

"The contrast between Brad Hastings' interpretation of ADA compliance before and after the city/DNWM partnership is jarring," the suit alleges.

Hastings originally cited 2010 ADA standards but after teaming up with the city was quoting standards from 1999, the suit alleges.

Soon after giving Heritage Square Commons his organization's "seal of approval," Hastings was appointed to Muskegon'sDowntown Development Authority, according to the suit.

A message left with Muskegon City Manager Frank Peterson, a defendant in the lawsuit, was not returned Monday.

Canter continued to protest to the city, and Hastings and Fleser stepped up their criticism of her, excluding her from Statewide Independent Living Center business and coordinating with the city in accusing her of harassment and using divisive tactics that "belittle and bully," the suit alleges.

In fact, Canter was trying to work cooperatively to get the situation resolved, said her Hemlock attorney, Philip Ellison.

Ellison said he has asked a Muskegon County Circuit Court judge to halt proceedings in the defamation lawsuit the Disability Network brought against Canter, until the federal lawsuit is dealt with. Even if Canter was wrong in her complaints, which Ellison believes she was not, she has a First Amendment right to petition governments in good faith and criticize government practices without fear of retaliation, he said.

"All citizens ... are entitled to petition the government and criticize discriminatory practices without fear of retribution, especially when those criticisms point out violations of federal disability laws," the suit alleges.

Contact Paul Egan: 517-372-8660 or pegan@freepress.com. Follow him on Twitter @paulegan4. Read more on Michigan politics and sign up for our elections newsletter.

This article originally appeared on Detroit Free Press: Lawsuit: Disability group teamed up with Muskegon to allow inaccessible businesses

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