A 55-year-old disabled Mishawaka man has filed a federal lawsuit against the City of Mishawaka alleging his civil rights have been violated because some buildings, including City Hall and Battell Center, are not handicap-accessible, he claims.
Donald Oberloh, who is representing himself, is seeking unspecified damages and a jury trial. He also wants a judge to order the city to correct the “violations” and hire a disability compliance officer, which he says is required by law.
He says accessibility problems at Battell Center, his polling place, prevented him from being able to vote last November and violate the Americans with Disabilities Act and the Rehabilitation Act.
“The defendants could have easily made their facilities compliant within the last 20 years, and given the amount of money spent on non-compliant alterations and ‘pet projects’ since 1992, the city has no grounds to continue its intentional discrimination ...” Oberloh wrote in his seven-page complaint.
The lawsuit also names Mishawaka Mayor Dave Wood and Engineering Department Director Gary West as defendants.
The city responded by denying nearly all of Oberloh’s allegations, arguing he is not entitled to the relief he seeks. The 2010 standards in the Americans with Disabilities Act only apply to construction, alterations and architectural modifications commenced after March 15, 2012, the city’s attorneys, Janilyn Brouwer Daub and Eric Thomason, stated in a recent court document.
Daub did not provide comment for this story because the mayor is currently out of town, she said.
The city also noted in its filing that no part of the ADA or the Rehabilitation Act “require that existing facilities remove barriers to access where doing so is structurally impracticable, technically infeasible or barred by applicable fire codes, building codes or other regulations.”
Oberloh alleges Battell Center has “multiple architectural barriers ... that made it impossible for (him) to access the polling place without placing himself in undue danger that non-disabled people would not have to contend with.”
He said he waited four hours on Election Day in November for someone to open the door for him and improve accessibility and it never happened. He also said he notified various election officials of his intentions to vote beforehand.
The lawsuit lists seven violations at Battell Center, including the lack of a “safe route” from the sidewalk to the entrance, non-compliant disabled parking and insufficient parking signs for handicap spots.
The lawsuit also lists 25 violations at City Hall, and says that citywide, there are more than 1,000 violations.
“On a daily basis, sometimes as many as 20 separate violations have had to be navigated each day, at a high degree of potential personal injury by (Oberloh),” according to the lawsuit, filed in U.S. District Court in South Bend on April 23.
Oberloh also alleges the city retaliated against him after he voiced his concerns, by installing new sidewalks in front of his residence, in the 800 block of North Main Street, that are “grossly too steep to comply with the ADA, have a side angle too steep and have no curb as required,” according to the lawsuit.
Oberloh suffers from intermittent osteoarthritis and said he has little or no cartilage in his knees. Some days he can walk on his own, but on others he needs a cane or a wheelchair, depending on the pain, he said.
He said it’s possible for him to work around the violations, but he shouldn’t have to.
"That's like telling an African-American, can't you just sit in the back of the bus? Could they sit in the back of the bus? Yes, but it was a civil rights violation that they should not have to do, by law.”
Oberloh heads the local chapter of the National Advocacy for ADA Compliant Businesses. He said he frequently talks to businesses and local governments around St. Joseph County about how to bring their facilities in line with federal law.
He said he did not want to file a lawsuit against Mishawaka, but felt his concerns were not being addressed by the city.
"I can’t even vote because their buildings are not in compliance,” Oberloh said.
“I’ve been nothing but stonewalled by these people.” He added later: “It's not a matter of principal, it's a matter of law. I'm tired of being discriminated against. It's illegal for them to do it, and they should stop doing it."
Staff writer Mary Kate Malone: