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When four disabled Floridians sued the producers of the hit television show “Who Wants to Be a Millionaire” last year, U.S. District Judge Federico Moreno of Miami tossed the case. His final answer: The plaintiffs had no cause of action. But a recent U.S. Supreme Court ruling allowing disabled golfer Casey Martin to use a cart while competing on the PGA Tour prompted Moreno to ask a federal appellate court to send the case back to him for reconsideration. That may well happen on Nov. 16, when a three-judge panel of the 11th U.S. Circuit Court of Appeals in Miami is scheduled to take up the case. The suit Moreno dismissed alleged that the television program’s qualifying rounds discriminate against people with disabilities because they do not provide accommodations necessary for deaf, blind or paralyzed people to answer questions over the telephone. Wannabe millionaires have won more than $69 million since the show went on the air in August 1999, according to ABC’s “Who Wants to Be a Millionaire” Web site. But disabled people who brought the proposed class action allege they’ve been left out. To qualify for the right to compete on the air, would-be contestants must answer questions within 10 seconds, using the keys on their push-button telephones at home. That’s not enough time for a disabled person to react, the plaintiffs allege. The matter could have far-reaching implications for the electronic media and for the disabled community, suggests Michael Lanham, the Miami solo attorney who filed the suit on behalf of the plaintiffs. “This case will be a building block as far as access for all electronic media,” says Lanham, who was left a quadriplegic by a diving accident 25 years ago. The suit contends that procedures to qualify for the show violate provisions of the Americans with Disabilities Act. Sergio Rendon, a quadriplegic who is a name plaintiff in the case, says the procedures automatically eliminate him from the competition. Rendon uses a mouth stick to operate a computer or telephone and says the game doesn’t give him enough time to press the buttons. “I would just like to give it a shot,” says Rendon, who developed polio as an infant in his native Havana and who uses a wheelchair to get around. “If I could play, it would be a dream come true for me.” The original complaint filed in March 2000 alleges the show’s producers, ABC and Valleycrest Productions, violated Title III of the ADA by failing to take the necessary steps to ensure that no individual with a disability is denied services or treated differently than anyone else. The plaintiffs argue that the show need only provide disabled potential contestants with live operators who could accept verbal responses from individuals unable to press a telephone keypad or to provide them with special telecommunications devices for the deaf — TDD lines. That, according to the complaint, would allow them to “participate like everyone else and have the chance and dream of winning a million dollars.” The suit asked that the network be prevented from holding further contests until accommodations were made for the handicapped. It also sought unspecified monetary damages plus attorneys’ fees and costs. Moreno reasoned when he dismissed the case that ABC and Valleycrest Productions would, by law, have to comply with ADA requirements at the television studio where the show is taped because the law considers it a “public accommodation.” But Moreno, who is known as a strict constructionist, found nothing in the law requiring the defendants to make the game show qualifying process ADA-compliant. The ADA requires that businesses or public accommodations have an obligation to take necessary steps to ensure that no individual with a disability be excluded, denied services, segregated or otherwise treated differently than other individuals for a lack of auxiliary aids and services. A similar case filed by a deaf Buffalo, N.Y., man appears close to settlement. Peter F. Liberti Jr., a 30-year-old schoolteacher, sued ABC and Valleycrest in June 2000. Liberti alleged in the suit, filed in U.S. District Court in Buffalo, that the companies violated the ADA because he and others who are hearing-impaired are unable to try out for the show. Liberti’s lawyer, Bruce Goldstein, a senior partner at Bouvier O’Connor in Buffalo, said his case doesn’t seek damages, but asks only that his client and others like him have an equal opportunity to compete. If Liberti was able to make it past the qualifying rounds for the quiz show, Goldstein says, he would have no problem reading the host’s lips and answering questions. Goldstein expects that case will settle within the next few days. “If we have the settlement, I believe that he will have an equal opportunity to compete,” said Goldstein, adding that he could not comment further until the deal is signed. Goldstein did say, however, that the settlement would only apply to people who are deaf and not to those who are otherwise impaired. Even without Liberti, Lanham has gained significant new ammunition since Moreno dismissed the Miami case. The nation’s highest court ruled 7-2 in May that the PGA Tour must allow golfer Martin to use a cart, rather than walk, at tour events. Martin suffers from a degenerative circulatory disease that prevents him from walking without pain. The court said it was reasonable to allow Martin to use the cart because it would not fundamentally alter the nature of the game, which is about “shot making” and not about walking from one hole to the next. Lanham believes that ruling is key to his argument. “The PGA Tour is not a physical place either. It’s an organization,” he says. “So if it is subject to the Supreme Court ruling, I am sure a private entity that runs a television studio would be subject to it.” The plaintiffs are not alone in their belief that ABC and Valleycrest are wrong. Lawyers for the Department of Justice filed an amicus brief on their behalf. DOJ lawyers Jessica Dunsay Silver and Kevin Russell contend that both the Supreme Court and other courts previously concluded that the fact that Congress did not envision some of the ways the ADA might apply is not a legitimate argument against its application. “Where the discrimination occurs is irrelevant, so long as it deprives disabled individuals of the full and equal enjoyment of the services or privileges of any place of public accommodation,” they write in their brief. Elliot Scherker, a partner with Greenberg Traurig in Miami and one of the lawyers who represents ABC and Valleycrest Productions, declined to comment. Julie Hoover, a spokeswoman for ABC in New York, said the company does not comment on pending litigation. The defendants argue in their brief that the “qualifying rounds do not involve a place of public accommodation and therefore do not come within the purview of Title III of the ADA.” They contend that without any physical barriers, there is no discrimination. “The complaint,” writes ABC in its brief, “fails to explain how such individuals are excluded from participation.” That’s simple, says Rendon. “It’s like having a hotel that is totally accessible, bathrooms, rooms, and then the door to the main entrance is just 25 inches wide, which a wheelchair wouldn’t fit through,” he says. “It doesn’t make any sense.”

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