Suit Filed Over Summer Beach Vehicle Ban in Harvey Cedars

May 23, 2018
File Photo by: Jack Reynolds

A woman who owns a summer home in Harvey Cedars is suing the borough for discrimination in connection with a ban on vehicles on the beach that she contends violates the federal Americans with Disabilities Act.

Paul Fernicola, the attorney representing Elizabeth Greber, said the ADA mandates that government entities provide equal access to public facilities to people with disabilities.

Originally filed in Ocean County Superior Court last month, the case has been moved to a federal court in Trenton. Fernicola plans to seek an injunction to stop the borough from enforcing its beach vehicle ban, allowing his client to be able to access the beach.

He said Greber, whose home is on East 80th Street, suffered a stroke in 2008. For years, her physical condition prevented her from getting on the beach. He said that in 2016, she purchased an electric wheelchair fitted with beach tires so she could accompany her granddaughter to the beach, but the electric wheelchair was not powerful enough to use on the beach because the sand was too soft. As a result, she bought a four-wheel-drive Kawasaki Mule.

Fernicola said that the following summer, she was operating the Kawasaki when the borough ticketed her for illegally operating the vehicle on the beach. 

“The borough has failed to identify any legitimate safety reasons to preclude the use of any and all private OPDMDs (other powered-driven mobility device) on the Harvey Cedar beaches through the summer season,” wrote Fernicola in his complaint. “The ADA compels municipalities to allow individuals with disabilities to utilize OPDMDs in all public areas where members of the public are also allowed to access these same public areas. A municipality must allow individuals with disabilities to use any OPDMD to enter public property. Legitimate safety concerns may be addressed through certain requirements but such requirements must be based on actual risks, not on speculation or stereotypes about a particular type of device or how it may be operated by a person with a disability.”

Borough Clerk Daina Dale said the borough has always had an ordinance banning vehicles on the beach during the summer, but in 2016 it was revised.

“We needed clearer definitions of what is allowed and not allowed,” she said. “Authorized vehicles included those for emergency responses and borough employees, and powered wheelchairs. But hers (Greber’s) would not be allowed.”

Mayor Jonathan Oldham said the ordinance is “a matter of safety.”

“Having these high-powered vehicles where beachgoers are is not a safe situation,” he said.

Oldham said the borough has made other accommodations for physically disabled people, such as handicapped ramps and beach wheelchairs for beach patrons to use. In addition, it also has its own beach vehicle, similar to Greber’s, for lifeguards to take disabled patrons to and from the beach, the mayor said.

Long Beach Township also has four all-terrain John Deere Gators for transporting the infirm to the beach, said Oldham. “It’s a great service.”

However, Fernicola said that service is available during the hours of 10 a.m. to 3 p.m., “thus precluding a disabled individual from accessing the Harvey Cedars beaches for several hours a day, including sunset and late afternoons during the summer.”

Michael J. Darcy, executive director of the New Jersey League of Municipalities, said the case is an example of a town “caught between competing demands.”

“You certainly want to make sure that beachgoers enjoy a safe environment,” said Darcy. “But there also is a need to provide access for the disabled. So what do you do? It’s a problem that seashore communities have. You know that when you make a decision, you’re not going to please everyone.”

He said that if a town allowed vehicles on the beach and a sunbather was injured, someone would probably say, ‘What idiot allowed vehicles on the beach?’ Then you’d probably get hit with a lawsuit. These communities are really in a tough spot.”

— Eric Englund

ericenglund@thesandpaper.net

Comments (1)
Posted by: Jean D Ragone | May 24, 2018 17:25

While I sympathize, I do not want anyone other than a township employee operating any vehicle with the power of a gator or a mule. Our beaches get very congested during the summer months.  The township has acted in good faith by providing township owned and operated vehicles to help those needing assistance to get on and off the beach. We have a service dog but there is no way I will bring him to the beach during the summer out of consideration of others safety, fear and allergies. Perhaps the availability of the township gator could be extended to 5 pm. And I’m sorry but the sunsets are to the west (bayside) of the Island.



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