Laws require enforcement

[ADAguy]

My apologies for not being able to respond to the recently close thread.

Yes, laws are often political in origin, their orgins often being driven by selfserving interests.

Our disabled population did not ask for but does appreciate the access provided by the ADA, this in spite of the lack of adequate research by which initial ADAAG was drafted.

ANSI 117.1 was even more minimal when it began and has still not risen to a DOJ level of acceptance as a minimal safe harbor.

The present ADAS has greatly clarified some but not all of the inconsistences of ADDAG but is and will remaing a living document and this forum can assist with that process

However once a law, whether Federal, State or local, their implementions require enforcement guidelines, hence inclusion in codes and regulations.

It is often the lack of langauge clarity of them that is what we are attempting to discuss on this forum.

Access is intended for all of us to accommodate each as necessary.

You can accept it for what it is, or not; but it is the law of the land.

It remains for individual state AG's to agree that enforcement, based on a code that has been certified, is the duty of AHJ's/BO's.

Now, does that clarify and reduce the closed issue to one of greater clarity?

No emotions, no jargon, just the law.

 

[conarb]

There is a bigger issue here that I referred to above, that is the right of the DOJ to write regulations in excess of the legislation passed by Congress, our President has gone around Congress instructing that the EPA to write regulations that Congress refuses to write, the matter was argued today . The hearing in the Supreme Court was held today and of course the decision hasn't come down yet, the issue is the Obama administration has gone around congress ordering the EPA to write regulations governing greenhouse gasses when Congress has refused to regulate, the same thing applies here, does the DOJ have the right to write regulations governing lead when those regulations were not laws passed by Congress? Neither the DOJ nor the EPA are supposed to write laws, they are supposed to write regulations interpreting laws.

I just Googled it to see how Supreme Court watchers have read the justices' reactions, it looks like a 5 to 4 decision with Kennedy as the swing vote, maybe clipping the wings of the EPA (and DOJ) since Kennedy appeared critical of the administration at points but did not indicate his support for either position. Kennedy was a freshman when I was a senior in college, I didn't know him but sure wish I had! Here are some takes on today's hearings:

A surprise to no one, news reports Monday afternoon indicate the court was divided during the 90-minute argument. Justice Antonin Scalia was a leading critic of the EPA's arguments, backed by Justice Samuel Alito and to a lesser extent Chief Justice John Roberts. Four liberal judges on the other hand, Stephen G. Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor appeared supportive of the administration. Assuming Roberts and Justice Clarence Thomas (who maintained his usual silence during the arguments) side with Scalia and Alito, the deciding vote will likely be cast by Justice Anthony Kennedy. Kennedy appeared critical of the administration at points but did not indicate his support for either position.Siding with the EPA are environmental groups and state regulators, including New York, California and Illinois. The American Thoracic Society, a group representing 15,000 members from the medical community, filed a brief on the health costs of climate change caused by greenhouse gas emissions. ¹

And the left wing Daily Kos:

Predictions of Court rulings based on questioning in oral arguments from the justices is always risky. But after winning the previous cases, the government could lose this one. That would give the anti-EPA forces some ammunition with which to attack the agency, hurting its Prevention of Significant Deterioration program. Justice Kennedy, as so often the case, is the wild card. ²

And The New York Times:

Justice Anthony M. Kennedy, who may hold the decisive vote, made a point that did not bode well for the agency.“I couldn’t find a single precedent that strongly supports your position,” he told the agency’s lawyer, Donald B. Verrilli Jr., the United States solicitor general.³

Obviously I'd like to see the court severely regulate all the regulatory agencies that are writing the laws that govern us, I have no idea how, short of making them submit all regulations to Congress prior to their becoming law, of course with Nancy Pelosi saying about the ACA: “we have to pass it so you can find out what’s in it” I doubt that our legislators are interested and intelligent enough to actually read what becomes our laws, this applies not only to the EPA but the ADA and every other alphabet soup agency.

I think that even the most ardent ADA supporters have to agree that a lot of the regulations are unreasonable, our freedoms are at stake, including the First Amendment Freedom of Association. As I've said before, were I a member of Congress at the time the law was passed I would have supported the ADA law including the private right of action as opposed to having civil servants enforcing the law, the problems are the absurd tyrannical regulations, had I supported the law I would have been sadly disappointed that it was being used for extortion and would move to rewrite the law writing the private right of action out of it.

Laws and regulations can be found unconstitutional on the basis of "Void for Vagueness", Thursday I reported the yellow matts with the bumps on them in Berkeley, today in Walnut Creek all the matts with bumps are gray, and above where the gray matts were glued down the concrete was cut with groves, I guess the prior standard, at least the regulations are so vague that major cities don't understand them. On the issue of Civil Rights for Blacks the Court said they had to end by 2023, maybe the Court could make the ADA constitutional by putting a termination date on it.

The title of this thread is "Laws require enforcement", I'd say no, discriminatory unconstitutional laws should not be enforced, like Jim Crow laws should never have been enforced.

¹ http://www.thestreet.com/story/12441581/1/supreme-court-weighs-epa-power-in-greenhouse-gases-case.html

² http://www.dailykos.com/story/2014/02/24/1280029/-Divided-Supreme-Court-hears-oral-arguments-in-third-EPA-case-on-regulating-greenhouse-gases

³ http://www.nytimes.com/2014/02/25/us/justices-weigh-conundrum-on-epa-authority.html

 

[Frank]

I will disagree with the headline premise that laws require enforcement.

The tangled code of laws and regulations now on the books are impossible to enforce or fully comply with.

No one, including the IRS, knows what the tax code means.

The laws regarding intimate behaviour are so convoluted that almost all have violated one or more at some time in their life. Relations outside of marriage are illegal in most states. Firearms regulations are similarly convoluted.

Many of these examples are of questionable constitutionality.

I have heard from many sources that an officer could follow any motorist for a mile and come up with some violations.

Most times these issues of excessive law is papered over through prosecutorial discretion--The car running 74 in a 70 zone is not pulled over and given a ticket, even though it is illegal.

The ADA and accessibility regulations are similarly difficult and expensive to comply with exactly. They also have an ex post facto character when applied to existing buildings that were legal when constructed or when complied with the older ADA guidlines but no longer comply with the new 2010 ones or changing state ones.

A bathroom was constructed under an older accessibility code with 2 horizontal grab bars turning space etc.--the sink is in what the current code requires as clear space beside the toilet, how fair is it to require that the bathroom be torn out and widened at considerable expense when it met the accessiblity regulations at the time?

In some ways these are like requiring that your 20 year old car be upgraded to meet all new emissions, anti-lock brake, traction control and airbag requirements--possible but not economical.

The big difference with the ADA and some state regulations is that there is a financial incentive for private individuals to prosecute minor and major violations--What if private individuals could enforce traffic laws and pocket half the fines? There would be a whole lot of complaints about people running 72 in the 70 mph zone.

Note that there are many basic justice arguments for eliminating many laws and simplifying others, but there is no profit to the lobbiests and lawyers in the legislatures for so doing--even for those that have been struck down by the courts.

 

[tmurray]

Ultimately what is going on is the oppression of one group of people or another. You can oppress those with disabilities, or people who own businesses. The only real way to fix this is to take out the current legal action from this law (no cereal lawsuits) and allow local AHJs to enforce it. Allow them to be reasonable so that businesses aren't run into the ground to make upgrades outside the scope of work. There are some buildings that may never become accessible, but most will be accessible enough to be frequented by the majority of the population.

For instance, the Supreme Court of Canada recently struck down a couple of anti-prostitution laws because they violated the Canadian Charter of Rights and Freedoms (basically the Canadian version of your constitution). The court delayed the active date of their decision for a year, so we can still prosecute prostitutes under an illegal law. Two provinces have decided that they are no longer prosecuting for these offenses, while they are still technically illegal it is obviously immoral to enforce these laws. I see the ADA law much the same way, an excellent intent, but poor delivery. It should be similar to the building codes in that nothing is needed to be changed until work is undertaken. At that time the local AHJ can enforce the installation of accessible construction. The AHJ can look at things reasonably and determine how accessible a building needs to be based on reality, not the ideal scenario that the laws were written around.

You might think that this won't work, but this is how it works ion Canada and we have some projects that making an old building more accessible is the scope of the work. They are not doing anything else. Business owners get it. If I make my building nice and easy to get into, get around in and use the facilities, people are more likely to shop here. They will drive by the places that are closer. They will drive by the places that are cheaper. They will come to shop here because it is more comfortable.

 

[ADAguy]

To each of you who has responded, I thank you for your logical (without animosity) comments.

Let us continue in this vane as it appears we are achieving a level of consenus with this thread.

The task at hand is how can we bring clarity to the regs? Can it be done at the local agency level or does it require a state initive to bring forth clarity?

California revisions to its 2013 code are attempting to do so. It enjoyed statewide participation of most stakeholders.

 

[jar546]

One of the biggest issues is that over the years as businesses did renovations, they did nothing to update or upgrade within reason and within the letter of the law what was required. Whether they did so out of ignorance to the law or by choice, the fact is that they did not comply. If they did and had good enforcement with paperwork then it is my belief that is completely defendable in court as they can show the timeline, cost and inspections, CofO, etc. But instead, they fold because the know they are wrong and have no proof that they at least attempted.

Unfortunately, in areas that don't have their own accessibility, enforcement is reactive so ignorance has a lot to do with the problems.

The resistance to ADA compliance is also found in new construction and renovation work where they ARE aware of accessibility requirements. We see and deal with it all of the time. There has been much better enforcement of electrical and building requirements over the years than accessibility and they should be no different.

I think the amount of frivolous litigation is giving accessibility a bad name and I am not a fan of frivolous litigation. I don't agree with the tactics but I also clearly see that it is one of the most effective ways towards compliance.

So you can spend all of your time complaining about it or do something about it. Spending time here telling us how bad it is is not going to help your cause unless your cause is the ability to whine.

 

[north star]

= ~ = ~ =

"The only real way to fix this is to take out the current legal action from this law (no cereal lawsuits)and allow local AHJs to enforce it........Allow them to be reasonable so that businesses aren't run into the

ground to make upgrades outside the scope of work."

I respectfully disagree with this statement...........History is alreadyfull of regular instances where the local AHJ's will not enforce anything

consistent or fairly.

I've said it before and I will say it again, ...as a business owner you have to

know the costs of doing business in your locale......Be that in the U.S., or in

other countries.....Part of those costs [ in the U.S. of A. ] are compliance

with the laws........In some parts of this country today, Civil Rights are still

being violated by some business owners........Until they are prosecuted and

made to comply, [ some ] businesses roll right along without doing anything.

Heck, in most corporations, ...it's part of their business models to resist

compliance with the adopted laws until they are actually prosecuted.......The

Boards and officers of the corporations won't remain in their positions

long if they willingly spend [ potential ] profits without being made to comply

by prosecutorial action first !

Also, by being a business owner, ...you simply have to be aware of the laws

of the land in which you reside or do business.........Turning a "blind eye"

wreaks of underhanded, unequal advantages for you, while others are

complying [ i.e. - read "corruption" ].



~ = ~ = ~

 

[Paul Sweet]

ANSI A117.1 and ADASAD are very similar. I believe the reason ANSI A117.1 hasn't "risen to a DOJ level of acceptance as a minimal safe harbor" is because ADASAD includes items such as ATMs, phones, etc. that are outside of the scope of a building code. IBC Appendix E includes those items if the jurisdiction wants to adopt and enforce them.

ADA Title III section 306.4.2(b) says:

(b) Alteration. For the purposes of this part, an alteration is a change to a place of public accommodation or a commercial facility that affects or could affect the usability of the building or facility or any part thereof.

(1) Alterations include, but are not limited to, remodeling, renovation, rehabilitation, reconstruction, historic restoration, changes or rearrangement in structural parts or elements, and changes or rearrangement in the plan configuration of walls and full-height partitions. Normal maintenance, reroofing, painting or wallpapering, asbestos removal, or changes to mechanical and electrical systems are not alterations unless they affect the usability of the building or facility.

A lot of work done at the change of tenants wouldn't fall under this definition. New finishes don't require the anything to be made accessible. New millwork and furnishings such as sales counters, tables, shelving, aisles, etc. would have to be accessible themselves, but they wouldn't trigger redoing the restrooms, parking spaces, or entrances.

 

[mark handler]

ANSI A117.1 also does not have full scoping docs. ANSI A117.1 is intended as a standard not a stand alone code.

 

[Frank]

One of the biggest issues is that over the years as businesses did renovations, they did nothing to update or upgrade within reason and within the letter of the law what was required. Whether they did so out of ignorance to the law or by choice, the fact is that they did not comply. If they did and had good enforcement with paperwork then it is my belief that is completely defendable in court as they can show the timeline, cost and inspections, CofO, etc. But instead, they fold because the know they are wrong and have no proof that they at least attempted. I think the amount of frivolous litigation is giving accessibility a bad name and I am not a fan of frivolous litigation. I don't agree with the tactics but I also clearly see that it is one of the most effective ways towards compliance.

Yes thre are some egregious cases but many of the cases are defensible in court, however the cost of defense through trial is hundreds of thousands of dollars, and the potential loss goes from buying off the plaintiff for 10-20 thousand or risk if you lose hundreds of thousands of dollars for their attorney fees as well as paying for your own. If you win you are still on the hook for your own hundreds of thousands of dollars in defense costs. The plaintiffs have no incentive not to bring any case that has the least color of merit, even if it is trivial or frivolous.

 

[jar546]

Yes thre are some egregious cases but many of the cases are defensible in court, however the cost of defense through trial is hundreds of thousands of dollars, and the potential loss goes from buying off the plaintiff for 10-20 thousand or risk if you lose hundreds of thousands of dollars for their attorney fees as well as paying for your own. If you win you are still on the hook for your own hundreds of thousands of dollars in defense costs. The plaintiffs have no incentive not to bring any case that has the least color of merit, even if it is trivial or frivolous.

Thank you attorneys for exposing the underbelly of a good law

 

[ADAguy]

They thrive on determing the minute differences of words such as standards, prescriptive, proscriptive, required, performance, maximum extent feasible, reasonable, functionally equivilent and visitability; words lacking clarity of definition by the ADA and left to the courts to determine vwith varying degrees of sucess.

In the Sorenson case the USSC has held that where a term is ambiguous (too whom, a reasonable person?), interpretation shall be left up to the controlling agency so long as the interpretation is "reasonable"

Without clear and succint language this can go on forever.

 

[nitramnaed]

On the issue of Civil Rights for Blacks the Court said they had to end by 2023

Besides the unfortunate tone of this statement are you saying the Supreme Court has ruled that the Civil Rights Act of 1964 and subsequent legislation is terminated in 2023?

I assume you don't mean that civil rights will end only for African Americans while the rest of us enjoy our civil rights?

 

[conarb]

Besides the unfortunate tone of this statement are you saying the Supreme Court has ruled that the Civil Rights Act of 1964 and subsequent legislation is terminated in 2023?I assume you don't mean that civil rights will end only for African Americans while the rest of us enjoy our civil rights?

The whole concept of LBJ's 1964 act was to obtain votes for the Democratic Party as is evidenced by Johnson's famous quote that I posted before. The concept of preferential treatment for any group is unconstitutional on it's face, these special privileges were set to expire by Justice O'Connor in the 2003 case of Grutter v. Bollinger.

The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today." The phrase "25 years from now" was echoed by Justice Thomas in his dissent. Justice Thomas, writing that the system was "illegal now", concurred with the majority only on the point that he agreed the system would still be illegal 25 years hence.¹

Whenever you give certain groups preferential treatment you limit the civil rights of other groups, BTW, they are supposed to expire in 2028, not 2023.

¹ http://en.wikipedia.org/wiki/Grutter_v._Bollinger

 

[nitramnaed]

Fair enough. You're talking about Affirmative Action…..Debatable. Civil Rights……Not debatable.

 

[mark handler]

As for accessibility, big bad government rules, As building officials, it's helpful to know the tactics of the other side.

Stand your ground in the face of opposition, sometimes they're just playing with you......

People deciding which Laws/rules they want to enforce, Yep.

 

[ADAguy]

Yep,

but as to the 25 year window, this is a wrinkle I was not aware of. "ticking" time bomb?

 

[Frank]

Attorney General Eric Holder has opined that some laws should not be enforced or defended.

Civil rights are debatable, through debate the understanding is strengthed.

These is also room for debate on where to draw the line between conflicting rights. My right to freedom of religion ends some where short of your young daughter's right to life when my religion calls for sacrificing a young virgin to the volcano.

 

[mark handler]

sacrificing a young .... to the volcano.

 

[conarb]

As for accessibility, big bad government rules, As building officials, it's helpful to know the tactics of the other side. Stand your ground in the face of opposition, sometimes they're just playing with you......

People deciding which Laws/rules they want to enforce, Yep.

Mark:

So those of us who want to preserve what's left of our freedoms are the "other side"? Is this war, the public servants on one side and free enterprise on the other?"

As to "People deciding which Laws/rules they want to enforce" Frank is correct, every school child is taught that we have three arms of government, the legislative, the executive, and the judicial, and no one of the three can take the functions of the other, they are the heart of our system of checks and balances, the judicial has long been criticized for legislating from the bench, now we have a President who is abdicating his responsibly to enforce drug laws that he doesn't like, refusing to enforce portions of his signature health care law because they could cost his party elections, and now legislating environmental laws that are now in front of the Supreme Court. The President is the chief executive in this nation, all building department personnel are lower level executives, if the President can arbitrarily decide not to enforce laws that he doesn't like so can every building inspector in the land.

Since ADA law and EPA law seem to be doctrine advocated by the radical left in this country, both using activist techniques, and both wanting to destroy our freedoms and redistribute our wealth, some quotes from David Brower, the father of the environmental movement:

When you believe that “all technology should be assumed guilty until proven innocent,” as Brower does, it makes perfect sense to strive for an ever-shifting landscape of what positions are “reasonable.” According to the left-leaning “CounterPunch” online journal: “The fiery stance of today’s green militants owes everything to Brower.” Brower certainly didn’t shy away from extremist imagery. He told the Christian Science Monitor: “I’d like to declare open season on developers. Not kill them, just tranquilize them.” That’s a line Brower regularly repeated in his lectures.

In her books Trashing the Planet and Environmental Overkill, Dixy Lee Ray captured how Brower happily placed his environmental credo over the well-being of his fellow human beings. Three Brower quotables stand out:

1) “Childbearing [should be] a punishable crime against society, unless the parents hold a government license… All potential parents [should be] required to use contraceptive chemicals, the government issuing antidotes to citizens chosen for childbearing.”

2) “While the death of young men in war is unfortunate, it is no more serious than the touching of mountains and wilderness areas by humankind.”

3) “Loggers losing their jobs because of Spotted Owl legislation is, in my eyes, no different than people being out of work after the furnaces of Dachau shut down.” ¹

So Mark and ADAGuy, where do you draw the line, if you were AG Holder would you enforce the drug laws? If you were President Obama would you refuse to enforce your own signature health law? If you were a guard at Dachau would you refuse to put people in the ovens? At what point does the executive draw the line at reasonableness?

¹ http://www.activistcash.com/person/3507-david-brower/

 

[mtlogcabin]

I have a hotel ADA remodel as part of a DOJ national settlement against the hotel chain. They cannot meet ANSI 607.2 without disrupting existing fire and structural walls. ADA has an exception so they are meeting the DOJ requirements in their design. The more stringent is suppose to be applied.

As the BO I have certain latitude to accept the ADA as an alternative means to ANSI even though it is a lesser requirement than the ANSI. Should I do this simply because ADA has determined no "civil rights" have been violated by placing a lavatory sink next to the bathtub. Won't the sink interfere with swinging the legs over the tub?

Thankfully the "codes" where never about "rights" they where about understanding the "intent" of the code language as it applied to a particular project. "Civil Rights" are not a code consideration. I realize building codes will and should incorporate the "intent" of the accessibility laws into the body of the code and this has happened to a very large degree. However, the ADA "rules" have moved beyond building codes with the regulation of what I refer to as "furniture and fixture" such as ATM's, vending machines, placement of exercise equipment within a room, pool lifts and a number of other items. I do not believe they should be within the "scope" of the building codes.

However once a law, whether Federal, State or local, their implementions require enforcement guidelines, hence inclusion in codes and regulations

I disagree with the last part of your statement. Enforcement does not have to be by inclusion in the codes. Enforcement will be spelled out within the law as adopted. In fact the codes do not have an enforcement mechanism within them. They refer you to local legal counsel. IBC 114.3 ANSI

607.2 Clearance. A clearance in front of bathtubs extending the length of the bathtub and 30 inches (760 mm) minimum in depth shall be provided. Where a permanent seat is provided at the head end of the bathtub, the clearance shall extend 12 inches (305 mm) minimum beyond the wall at the head end of the bathtub.

ADA

607.2 Clearance. Clearance in front of bathtubs shall extend the length of the bathtub and shall be 30 inches (760 mm) wide minimum. A lavatory complying with 606 shall be permitted at the control end of the clearance. Where a permanent seat is provided at the head end of the bathtub, the clearance shall extend 12 inches (305 mm) minimum beyond the wall at the head end of the bathtub.

 

[mark handler]

George Bush SR and George Bush Jr signed the law and reaffirmed the law passed by congress. that law gave the Access Board and the DOJ the mandate and authority to set up and enforce the Law. The congress, in the infinite wisdom, allocated those powers. If you want to modify the you need to talk to your congressman and senators.

 

[mark handler]

"Civil Rights" are not a code consideration. I realize building codes will and should incorporate the "intent" of the accessibility laws into the body of the code and this has happened to a very large degree. However, the ADA "rules" have moved beyond building codes with the regulation of what I refer to as "furniture and fixture" such as ATM's, vending machines, placement of exercise equipment within a room, pool lifts and a number of other items. I do not believe they should be within the "scope" of the building codes. .

Which is the distinction I keep trying to make, don't blame the ADA for some standards you do not agree with.

ADA is not a building code, educated building officials and professional understand that.

 

[conarb]

George Bush SR and George Bush Jr signed the law and reaffirmed the law passed by congress. that law gave the Access Board and the DOJ the mandate and authority to set up and enforce the Law. The congress, in the infinite wisdom, allocated those powers. If you want to modify the you need to talk to your congressman and senators.

Mark:

This is not a R vs. D thing, I've repeatedly said Johnson passed the Civil rights law to buy votes for the Democrats, the Republicans added ADA to the civil rights law to buy votes. All laws are usually interpreted with a reasonableness standard, ADA has has no reasonableness standard, it is no wonder that businesses able to pay hundreds of thousands in legal fees win ADA lawsuits win over 90% of the time, it's just that most can't afford to defend themselves against these extortionists.

You didn't answer my question, where would you draw the line in the instances above, I'm sure you would draw the line before pushing people into the oven, but what about the others? On the other hand maybe ADAGuy would push people into the ovens, he has stated laws must be enforced.