- The Washington Times - Monday, December 4, 2000

A recent federal court decision deprives the U.S. Department of Transportation of authority to penalize bus companies for violating the Americans with Disabilities Act without court hearings. The U.S. Court of Appeals for the District of Columbia ruled Nov. 14 in favor of the American Bus Association, a D.C.-based organization of over-the-road bus companies. Now, inter-city bus companies, such as Greyhound Bus Lines and Coach USA, can be fined only if they lose lawsuits. Even then, courts will determine the amount of the fines rather than the Transportation Department.

The ruling took away the right of the Transportation Department to force bus companies to automatically pay disabled passengers money each time the bus companies fail to give them access to wheelchair lifts or similar accommodations.

The 1990 Americans with Disabilities Act requires operators of public accommodations and employers of at least 15 people to make their services or jobs accessible to disabled persons.

A Transportation Department spokesman said although the ruling deprived the federal government of one way of enforcing the ADA, other remedies are available.

"This is one that was intended to be relatively quick and automatic," he said. "I think the requirements for over-the-road bus transportation will continue to be enforceable."

Until the court's ruling, the Transportation Department required bus companies to compensate inconvenienced passengers $300 for a first violation of the ADA and increasing by $100 for each violation up to $700. Afterward, each violation incurred a $700 penalty.

In addition to a lack of wheelchair lifts, typical violations can include inadequate signs for hearing-impaired riders and a lack of audible or sensory messages for visually-impaired customers.

The attorneys for the American Bus Association said the rule gave bus companies no opportunity to explain themselves before being penalized.

"This takes away the possibility of some sort of Draconian and automatic penalty system," said Richard Schweitzer, attorney for the American Bus Association. "Bus companies won't be subject to an automatic penalty provision without any opportunity for a hearing or third-party intervention."

Peter Pantuso, American Bus Association president, denied bus companies would reduce their service to disabled persons because of the ruling. He said transportation companies and agencies still would be motivated by the market need to serve their riders.

"I don't see in the least that there will be any lessening in the service they provide their customers if they need a wheelchair lift or any other service a [bus] operator may provide," Mr. Pantuso said.

The dispute involved a rule issued in September 1998 by the Transportation Department that required all over-the-road bus operators to equip their fleets with wheelchair lifts and to compensate disabled passengers when they failed to provide them with transportation. The rule was scheduled to take effect next October.

The American Bus Association filed a lawsuit saying the Transportation Department lacked legal authority to penalize the companies without court hearings.

Title III of the Americans with Disabilities Act directs the Transportation Department to develop rules to ensure the accessibility of buses and other transportation modes. A lower court ruled for the Transportation Department that its right to penalize common carriers was implied by Title III.

The appellate court said the statute was too ambiguous for the Transportation Department to conclude it had authority to impose money damages on bus companies. As a result, only the courts could impose monetary damages after a decision in a lawsuit, the court said. The Transportation Department would have to restrict itself to penalties specifically mentioned in the Americans with Disabilities Act, such as helping represent private citizens in their own lawsuits.

"Unless Congress delegates authority to an agency, the agency is without power to act," the court said.

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