Parking sign too low? See you in court!

[mark handler]

Parking sign too low? See you in court!
http://www.washingtonexaminer.com/handicapped-parking-sign-too-low-see-you-in-court/article/2613117
Imagine you're a small business, and one day you are sued because a posted parking sign in your parking lot is only 59 inches off the ground, and not 60.
You can spend tens of thousands of dollars to fight the suit over several months, or, you can settle for less. It may sound ridiculous, but the law is the law. And for some, it's an opportunity to collect some cash.
Last year an advocacy group in Phoenix filed over 1,000 lawsuits against businesses for violating requirements of the Americans with Disabilities Act, or ADA. In many instances, the plaintiffs demanded thousands of dollars for a settlement over the slightest of technicalities, many of which could be remedied quickly. But remedy was seldom an option. According to TV station ABC-15, which broke this particular story, the charity was assisted by a handicapped individual who acted as the plaintiff on most of the suits, even though the person had not physically been to a number of the properties that were eventually sued.
In Florida, an investigative reporting team discovered a man who had filed over 1,000 ADA lawsuits, one of them even alleging that a business had a toilet paper dispenser that wasn't the right height.
Stories similar to this have sprouted up across the country, and lawmakers have taken notice.
Republican Congressman Ted Poe from Texas is the point man for bipartisan legislation he hopes will reinvigorate the original spirit of the ADA while tamping down on the spigot of dollars flowing from frivolous or predatory lawsuits that can also be a drain on courts. Poe's legislation primarily aims for small businesses to be notified of any deficiencies in their ADA compliance and then have a cure period to fix the violation. The business can only be sued after the notice and cure period have passed.
"The whole purpose of the bill, if there's a problem with the ADA at this particular business, is to fix the problem! But the trolls don't care about fixing the problem, they care about getting the money, which really doesn't even fix the problem!" Poe said.
Three Democratic representatives from California are co-sponsors of the bill. Last year, Governor Jerry Brown signed state legislation that would also give businesses a grace period to fix deficiencies with the ADA, especially those deficiencies related to signage.
Other states have tried to limit the so-called "drive-by lawsuits." Minnesota recently passed a law intended to increase accessibility for disabled individuals while at the same time reducing lawsuits.
Also from the Washington Examiner
Trayvon Martin's parents are considering running for office — perhaps even the White House.
Poe had a nearly identical bill in the house in 2016 that advanced the clock ran out. This year, he says he's already heard positive indications from members of the judiciary committee that his reintroduced bill should get quick approval to move to the house floor.
"The challenge is to let folks understand that this is an improvement of the ADA, this is not a bill that limits the ADA," Poe said.

 

[ADAguy]

So says he but what of DT? presidential proclamation pending?

 

[mark handler]

So says he but what of DT? presidential proclamation pending?

Executive orders cannot reverse a law that has been passed by Congress previously. He can direct how it is enforced. And the courts or congress can intervene.

 

[ADAguy]

Time will tell.

 

[conarb]

Executive orders cannot reverse a law that has been passed by Congress previously. He can direct how it is enforced. And the courts or congress can intervene.

The problem isn't the law that was passed by Congress, the problem is the regulations that have been written by the DOJ over the last 26-27 years, and it's the regulations that you enforce. During Trump's campaign he promised to reduce regulations by 70%, we know he hates the Justice Department because of their refusal to prosecute Hillary Clinton, the question is whether this anger will result in slashing more than 70% of the regulations written by them? We also know that he has been subjected to some pretty onerous fines and expenses by the ADA.

Already today he has signed executive orders limiting new regulations, I'll address getting rid of existing regulations below, but first what he signed today:

President Donald Trump signed an order on Monday that will seek to dramatically pare back federal regulations by requiring agencies to cut two existing regulations for every new rule introduced.

"This will be the biggest such act that our country has ever seen. There will be regulation, there will be control, but it will be normalized control," Trump said as he signed the order in the Oval Office, surrounded by a group of small business owners.

Trump's latest executive action will prepare a process for the White House to set an annual cap on the cost of new regulations, a senior official told reporters ahead of the signing.

For the rest of fiscal 2017, that cap on new regulations would be $0, the official said on customary condition of anonymity.

Trump, a businessman turned politician, campaigned on a promise to reduce federal regulations that he said burdened American businesses.¹

That is new regulations, the other day the Wall Street Journal published an article on how Trump can get rid of all rules and regulations instituted during the 8 years of the Obama administration to wipe out what remains of Obama's legacy by using the Congressional Review Act signed by President Clinton in 1996, so that means that Trump could eradicate all agency rules and regulations written after the date of Clinton's signing in 1996 under certain conditions, that's going back not just Obama's 8 years but 20 years. The CRA required all government agencies to send their rules and regulations to Congress 60 days prior to their taking effect so congress could approve them, agencies seldom if ever did this, so if the DOJ or their Access Board failed to submit their regulations to congress Trump can wipe them out with the stroke of his pen.

I don't know how many ADA regulations were written after 1996, but that horrible swimming pool lift "sit in" in the Congressional hearing comes to mind as one. This effects only federal ADA regulations, not state or building code regulations, but it would keep ADA litigation out of the Federal Courts confining litigation to the state court systems.





¹ http://www.reuters.com/article/us-usa-trump-regulations-idUSKBN15E1QU

 

[Yikes]

It would seem to me that if ADA is enforced in the courts via civil litigation, then the only options for a new administration are to:
1. Direct the DOJ to not prosecute ADA cases - - although this would still not prevent any private attorney from litigating.
2. Ask the congress to revise ADA.

 

[mtlogcabin]

I do not see a problem if left to the feds for enforcement. The problems arise when states enact legislation that mimics federal law an then become the avenue for the serial lawsuits where money is the motivation for a plaintiff and his/her attorneys not compliance.

A 59 inch sign height does not deny the use of the parking spot so no civil rights are denied. Should it be corrected? yes. Should it clog the courts with a lawsuit? No.

 

[conarb]

It would seem to me that if ADA is enforced in the courts via civil litigation, then the only options for a new administration are to:
1. Direct the DOJ to not prosecute ADA cases - - although this would still not prevent any private attorney from litigating.
2. Ask the congress to revise ADA.

No, if the DOJ did not send the legally required rules and/or regulations to Congress within the allotted time then the President can just wipe them off the books, Trump has stated that he wants to reduce Federal regulations by 70% here is an easy to do it, and the CRA says the agency cannot resubmit it, With the order he signed today if the DOJ wants another regulation approved it must delete two existing regulations, the ADA law isn't touched, only the regulations, and regulations like sigh height are ideal regulations to eliminate. He was elected to reduce regulations to primarily help small business by reducing the regulatory burden on them. If the states have approved statutes that mimic ADA the 14th Amendment to the Constitution, says in part, "....nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." The ADA gives an entire class of citizens special privileges and protections while simultaneously depriving other citizens of their property. I would say that if Trump uses the CRA to kill federal ADA privileges that the state mimiced privileges could be held a violation of the Privileges and Immunities Clause of the 14th Amendment.

 

[Msradell]

If the states have approved statutes that mimic ADA the 14th Amendment to the Constitution, says in part, "....nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." The ADA gives an entire class of citizens special privileges and protections while simultaneously depriving other citizens of their property. I would say that if Trump uses the CRA to kill federal ADA privileges that the state mimiced privileges could be held a violation of the Privileges and Immunities Clause of the 14th Amendment.

You can look at that wording from the other side and say that without the ADA requirements those with disabilities are being denied protection of the law. Granted, some states have taken the requirements to the extreme but overall there's a good basis for the general requirements. Many states have taken to the extreme however. The ADA requirements need to be completely rewritten so that the general aspects remain but the detailed requirements are eliminated. Who cares if a sign is 39.5 inches off the ground instead of 40"? The sign needs to be there but...

 

[mark handler]

It would seem to me that if ADA is enforced in the courts via civil litigation, .

There has been more action in the courts than from the DOJ.
If you ever read the ADA "law" and not just the standards you will realize that the DOJ Publishes and enforces the standards but they must be consistent with the Access Board Standards. The DOJ does not create the standards they Tweek and Publish them. The US Access Board Creates the standards.
The most Trump can hope for from the DOJ is to stop DOJ enforcement. As noted, that will not stop the civil litigation. The ONLY way to reform the ADA is through the Congress or Courts.

AND, a majority of the cases filed are through State Courts, NOT Federal. Most cases in CA, are through the Superior Court of CALIFORNIA, Citing State statutes and state laws, NOT through the federal system. Arizona with the almost 2000 cases filed late last year, in STATE court, Citing State statutes and state laws, not federal.
Trump has NO say in those cases. Even if the ADA were eliminated, there will still be cases in State courts.

The reason for the number of cases is lack of enforcement and lack of education. People have let things slide for years. All new buildings and MOST, not all, remolded buildings, built in the last 25+ years should be accessible. And as I have repeatedly stated, the enforcement process does need reform, the courts, though unqualified, seem to be the only recourse for some.

 

[mtlogcabin]

A simple way for enforcement of their state ADA laws is to incorporate some of the simple ADA regs into the property maintenance code.
Parking lot striping and signage, accessible routes where sidewalks may have elevation changes due to settling, tree roots or frost heave are a couple that come to mind. A simple correction letter and if not corrected then a civil citation to the property owner. No lawyers, nobody filing serial lawsuits for monetary gain because it is no longer a civil rights issue it is a property maintenance requirement that be be addressed by complaints or active enforcement by a jurisdiction

 

[ADAguy]

I have said this before, with our codes containing ADA requirements for new and altered buildings those buildings become enforceable for noncompliance by Code Enforcement which by state law can issue fines for noncompliance. Why don't/won't building departments use this to enforce correction of noncompliance?

 

[mtlogcabin]

I have said this before, with our codes containing ADA requirements for new and altered buildings those buildings become enforceable for noncompliance by Code Enforcement which by state law can issue fines for noncompliance. Why don't/won't building departments use this to enforce correction of noncompliance?

The building code is not a maintenance code and a building official does not have the authority to enforce all of the provisions of the code over the life of the building. To accomplish this it must be done through something like the property maintenance code and the budget and workforce to react to the complaints.

A] 104.6 Right of entry.
Where it is necessary to make an inspection to enforce the provisions of this code, or where the building official has reasonable cause to believe that there exists in a structure or upon a premises a condition which is contrary to or in violation of this code which makes the structure or premises unsafe, dangerous or hazardous,

3401.2 Maintenance.
Buildings and structures, and parts thereof, shall be maintained in a safe and sanitary condition. Devices or safeguards which are required by this code shall be maintained in conformance with the code edition under which installed.

 

[conarb]

The most Trump can hope for from the DOJ is to stop DOJ enforcement. As noted, that will not stop the civil litigation. The ONLY way to reform the ADA is through the Congress or Courts.

Wrong, in Trump's mandate to reduce regulations by 70% he can use the power granted him under the Congressional Reporting Act to unilaterally wipe out all regulations written after Clinton's signing in 1996, look at the history of the Access Board to see how far he can go back.

I did just learn something from Mark's post, I thought the Access Board was part of the DOJ, I now know that it is a separate federal agency. Ask yourself, if you had a mandate to eliminate 70% of the 200,000 pages of rules and regulations;

Control of the Regulatory Process

Federal regulations created by the regulatory agencies are subject to review by both the president and Congress under Executive Order 12866 and the Congressional Review Act.

The Congressional Review Act (CRA) represents an attempt by Congress to reestablish some control over the agency rulemaking process.

Executive Order 12866, issued on Sept. 30, 1993, by President Clinton, stipulates steps that must be followed by executive branch agencies before regulations issued by them are allowed to take effect.

For all regulations, a detailed cost-benefit analysis must be performed. Regulations with an estimated cost of $100 million or more are designated "major rules," and require completion of a more detailed Regulatory Impact Analysis (RIA). The RIA must justify the cost of the new regulation and must be approved by the Office of Management and Budget (OMB) before the regulation can take effect.

Executive Order 12866 also requires all regulatory agencies to prepare and submit to OMB annual plans to establish regulatory priorities and improve coordination of the Administration's regulatory program.

While some requirements of Executive Order 12866 apply only to executive branch agencies, all federal regulatory agencies fall under the controls of the Congressional Review Act.

The Congressional Review Act (CRA) allows Congress 60 in-session days to review and possibly reject new federal regulations issued by the regulatory agencies.

Under the CRA, the regulatory agencies are required to submit all new rules the leaders of both the House and Senate. In addition, the General Accounting Office (GAO) provides to those congressional committees related to the new regulation, a detailed report on each new major rule.¹

Randy Johnson, senior vice president of labor, immigration and employee benefits at the U.S. Chamber of Commerce, distributed a handout of a Congressional Research Service analysis of a 2008 study commissioned by the Small Business Administration that estimated the annual compliance price for all federal regulations at $1.7 trillion that year.

Seventy percent of the regulations were economic, accounting for $1.236 trillion of the annual cost. The other regulations were, in order of cost, environment regulations ($281 billion), tax compliance ($160 billion) and occupational safety and health and homeland security ($75 billion).

“I think these kinds of figures, if you put yourself in the place of a business person you’ll find them fairly mindboggling,” Johnson said.

Economists with the Chamber also analyzed the OBM’s report on the study, calculating that if every U.S. household paid an equal share of the federal regulatory burden, it would mean a $15,586 tab for each household in 2008.

Ronald Bird, economist with the USCC, told CNSNews.com that the 7.4 percent increase in pages of regulations during the first three years of the Obama administration is higher than the increase over the first three years of the George W. Bush administration (2001, 2002, and 2003) when the publication grew by 4.4 percent.²

The mandate here is to reduce regulations, if you were in Trump's shoes where would you cut the 70%? Obviously those you can unilaterally cut without going through Congress would be your first choice.

¹ http://usgovinfo.about.com/od/uscongress/a/fedregulations_2.htm

² http://www.cnsnews.com/news/article/under-obama-11327-pages-federal-regulations-added

 

[JBI]

Sign height is an easily correctable 'violation'. The courts, once involved, need to exercise proper juris prudence and simply order the sign adjusted with no penalties imposed. That would be consistent with the intent of the law and the regulations.
Code enforcement is not supposed to be about 'punitive' remedies as a first action.
Code enforcement needs to address the identified violations expeditiously in the interest of the health, safety and welfare of the citizenry.

 

[Filthy McNasty]

I think 59 inches off the ground could comply with ADA.

 

[mark handler]

2010 ADASAD 502.6 Identification. Parking space identification signs shall include the International Symbol of Accessibility complying with 703.7.2.1. Signs identifying van parking spaces shall contain the designation "van accessible." Signs shall be 60 inches minimum above the finish floor or ground surface measured to the bottom of the sign.
If in a POT
307.4 Vertical Clearance. Vertical clearance shall be 80 inches high minimum.

ADASAD 104.1.1 Construction and Manufacturing Tolerances. All dimensions are subject to conventional industry tolerances except where the requirement is stated as a range with specific minimum and maximum end points.

The 2010 ADASAD give a specific Max-point, ADASAD 502.6 does not say approximately 60".

 

[Filthy McNasty]

It depends. A sign conveys information. The access board has determined that the "sign" isn't the physical metal, but the wording itself. So, if the metal of the sign was at 59-inches but the wording was at 60-inches, then it complies.

 

[ADAguy]

A most interesting interpretation for which I thank you. The 502.6 wording would seem to indicate otherwise but I don't disagree. Has the Access Board posted the "determination?

They (plaintiff's) want to split hairs, there is more than one way to skin a cat.

 

[Filthy McNasty]

You are welcome. It came from the Access Board but I researched it a while ago, I don't know where it is posted. But it is posted somewhere (not much help).

Visual alarms are funny this way as well. I'd probably be remiss if I did not bring it up. Access board determined that the entire lens of the appliance must be above 80-inches. In other words, it's not the height of the device but the height of the lens. People get this wrong all the time. I know that there is an ADA Technical Advisory on this, but I can't find it as they have changed the link. When off by 1-inch, this can be fixable by getting visual alarms with the lens in the upper portion of the device. You can get that 1-inch back if they measured incorrectly.

 

[Mr. Inspector]

ICC/ANSI A117.1-2006 502.7 Identification.
Where accessible parking spaces are required to be identified by signs, the signs shall include the International Symbol of Accessibility complying with Section 703.6.3.1. Signs identifying van parking spaces shall contain the designation “van accessible.” Such signs shall be 60 inches (1525 mm) minimum above the floor of the parking space, measured to the bottom of the sign.

 

[Filthy McNasty]

Correct, the "sign" being the message (wording).

 

[mark handler]

A most interesting interpretation for which I thank you. The 502.6 wording would seem to indicate otherwise but I don't disagree. Has the Access Board posted the "determination?

They (plaintiff's) want to split hairs, there is more than one way to skin a cat.

The "Metal" Is part of the sign.
It maynot be part of the "signage", since the 1980's I have been reading court cases and interps on the accessibility issues, and have never heard or read that interpretation about the letters(text) vs tha backing. I will need to call the access board on that one.

I do know of some sections that measure to the text, but they relate to the sight impaired. Ie, room signage, braille cells, exctera. Not parking or wayfinding signage.

 

[Filthy McNasty]

It is the same concept as the visual alarm, or even tactile. Look up tactile and they even spell it out in that code. Think about it for a minute - if you have a very large "border" with no information, that regulates the requirement? Or is it the conveyance of the information what is really important, and the ability to see it and read it?

That is why I said that I think 59-inches could comply. But if I was to advise someone who is going to put up a sign, I'd still tell them 60-inches and leave it at that.